Commissioner of Police v Channel Seven Adelaide Pty Ltd - [2008] SASC 164

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Civil)
COMMISSIONER OF POLICE v CHANNEL SEVEN ADELAIDE PTY LTD
[2008] SASC 164
Judgment of The Honourable Justice White
19 June 2008
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL
DEFAMATION - ACTIONS FOR DEFAMATION - DISCOVERY AND INTERROGATORIES - DISCOVERY - IN GENERAL
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - AGAINST WHAT PERSONS
Appeal from decision of a master in defamation proceedings ordering the Commissioner of Police to make non-party discovery - whether appeal to be considered on the material before the master at first instance or on the material before the Court at the time of the appeal hearing - whether master's decision was premature in view of appeal against the first defendant's plea of justification - whether application for non-party discovery amounts to a "fishing expedition" - whether master's orders too wide - relevant considerations when exercising the Court's discretion to make orders for discovery against a non-party - factors to be taken into account in framing appropriate orders.
Held: appeal allowed to the extent of varying the form of orders made at first instance, otherwise dismissed - appeal to be determined by reference to circumstances and materials before the Court at the time of the appeal hearing - not appropriate to delay consideration of appeal until resolution of pleading appeal by the Full Court - high likelihood of relevant documents being in the Commissioner's possession - orders to be framed so as to provide certainty - master's orders varied accordingly.
Supreme Court Rules 1987 s 60; Supreme Court Civil Rules 2006 s 280, s 292, s 300; Supreme Court Act 1935 s 50, referred to.
McDonald's Corp v Steel [1995] 3 All ER 615; Tipperary Developments v Western Australia (1999) 21 WAR 250; Mobil Oil Australia v Guina [1996] 2 VR 34, applied.
Goldschmidt v Constable (1937) 4 All ER 293, distinguished.
S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 60; S, DJ v Channel Seven Adelaide Pty Ltd & Anor [2008[ SASC 108; Wigg v Architects Board of South Australia (1994) 36 SASR 111; In Re Flinders Trading Co Pty Ltd (1977) 20 SASR 14; Rogers v The Queen (1994) 181 CLR 251; Troisi Steel Fabrications Pty Ltd v Johns Perry Industries Pty Ltd (1992) 165 LSJS 333, considered.

COMMISSIONER OF POLICE v CHANNEL SEVEN ADELAIDE PTY LTD
[2008] SASC 164
Appeal from a Master

WHITE J: The plaintiff sues both Channel Seven Adelaide Pty Ltd and the Australian Broadcasting Corporation for damages for defamation. He alleges that on 14 and 15 May 2004 he was defamed by Channel Seven’s promotion for its “Today Tonight” television program broadcast in the following terms:
On Today Tonight South Australian Federal MP, her boyfriend and the business trip – disgusted that tax-payer funds have been used – the paper trail and the whistle blower – he is a suspect in a murder case.
The promotion included pictures of the plaintiff and of Corrina Marr who was murdered on 4 July 1997. The plaintiff complains about the words “he is a suspect in a murder case”.
Amongst other things, Channel Seven pleads justification of the impugned passage.
On 20 September 2007 Channel Seven sought an order, under r 60 of the Supreme Court Rules 1987, requiring the Commissioner of Police to disclose and produce certain documents in connection with its defence of justification. Channel Seven sought orders that:
1.The Commissioner of Police provide copies of all correspondence, notes and other documents relating to interviews conducted by the Police with the plaintiff in relation to the investigation of the murder of Corrina Marr on 4 July 1997.
2.The Commissioner of Police provide copies of all correspondence, notes and other documents, including witness statements, taken by the Police in relation to other witnesses regarding the plaintiff in relation to the investigation of the murder of Corrina Marr on 4 July 1997.
On 16 November 2007, a master made orders allowing that application in part and deferring consideration of one other aspect. The Commissioner of Police was required to file in the Court a list of “all correspondence, notes and other documents relating to interviews conducted by the Police with the plaintiff in relation to the investigation of the murder of Corinna Marr on 4 July 1997”. The master adjourned further consideration of Channel Seven’s application to inspect the documents discovered. The master’s order did not deal expressly with the documents sought in paragraph 2 of Channel Seven’s application. However, as that application was neither allowed, nor deferred, it may be inferred that that part of Channel Seven’s application was refused.
The Commissioner of Police appeals against both orders made by the master. During the course of the hearing of the appeal, Channel Seven sought, and was granted, an extension of time in which to commence a cross-appeal against the decision of the master with respect to paragraph 2 of its application. On 30 May 2008, I made orders allowing the cross-appeal and varying the orders made by the master. Otherwise the appeal by the Commissioner was dismissed. I said that I would publish reasons later. These are those reasons.
The Plea of Justification
At the time the master made his order the defence of Channel Seven was contained in the document entitled “Second Further Amended Defence” which had been filed on 26 June 2007 (FDN 110). On 5 March 2008, on an appeal by the plaintiff, the Full Court struck out the entirety of Channel Seven’s plea of justification. [1]
[1] S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 60.
Channel Seven then applied to amend its defence. For the reasons which I gave on 24 April 2008[2] and 16 May 2008,[3] I granted leave to Channel Seven to file and serve an amended defence. Channel Seven filed its Third Further Amended Defence (TFAD) on 16 May 2008. The plea of justification in the TFAD is in the following terms:
[2] S, DJ v Channel Seven Adelaide Pty Ltd & Anor [2008] SASC 108.
[3] Unreported.
7.2.1.1As to [sic] first part of the alleged composite imputation pleaded in paragraph 7(a) of the Second Further Amended Statement of Claim, namely that the plaintiff is a suspect in a murder case arising from the death of Corinna Marr, the first defendant relies upon the following material facts:
7.2.1.1.1Corinna Marr died as a result of gun shot wounds between about 2.30pm and 3.30pm on Friday, 4 July 1997 in her Collinswood unit.
7.2.1.1.2On 4 July 1997 the South Australian Police (“the Police”) commenced an investigation into the death of Corinna Marr, which investigation is ongoing.
7.2.1.1.3No person has been charged in relation to Corinna Marr’s death.
7.2.1.1.4As at the date of the broadcast of the promotion, the plaintiff was suspected by the Police of the murder of Corinna Marr.
7.2.1.2As to the second part of the alleged composite imputation pleaded in paragraph 7(b) of the Second Further Amended Statement of Claim, namely that there are grounds to so suspect him, which are reasonable, the first defendant relies upon the following material facts:
7.2.1.2.1In August 1997 the plaintiff was interviewed by the Police in respect of the Corinna Marr murder (“the first interview”), and in the course of the said interview the plaintiff:
7.2.1.2.1.1denied ever having a sexual relationship with Corinna Marr;
7.2.1.2.1.2said that he had last spoken to Corinna Marr several days before her death; and
7.2.1.2.1.3said that on the afternoon of Corinna Marr’s death, between 1.30pm and 5.05pm, he was present in the darkroom at the offices of Messenger Press [in the city of Adelaide].
7.2.1.2.1Aon or about 24 January 2004, the plaintiff said to the police that, on the afternoon of Corinna Marr’s death, he was taking photographs for an advertisement for All-Vac Vacuum Cleaners for Messenger Press (which said advertisement subsequently appeared on page 84 of the 9 July 1997 edition of the News Review Messenger).
7.2.1.2.2In October 2002 the plaintiff was again interviewed by the Police in respect of the Corinna Marr murder (“the second interview”), and in the course of the said interview the plaintiff:
7.2.1.2.2.1denied ever having had a sexual relationship with Corinna Marr;
7.2.1.2.2.2was unable to provide any, or any adequate, explanation for the discrepancy between his statement in paragraph 7.2.1.2.1.3 above, and the information provided to the Police (as pleaded in paragraph 7.2.1.2.5 below) to the effect that he (the plaintiff) was not present at the offices of Messenger Press on the afternoon of Corinna Marr’s death.
7.2.1.2.3The plaintiff had been involved in a sexual relationship with Corinna Marr for a period from at least the date of her wedding in January 1996, which relationship had continued until the day of Corinna Marr’s death on 4 July 1997.
7.2.1.2.4The plaintiff spoke to Corinna Marr by telephone on 4 July 1997.
7.2.1.2.5The plaintiff left his workplace on 4 July 1997 in his vehicle some time prior to 2.30pm, was not present at his workplace at the time Corinna Marr was murdered, and returned to his workplace between 3.30pm and 4.00pm that day.
7.2.1.2.6The plaintiff did not have any involvement in taking the photographs for the advertisement referred to in paragraph 7.2.1.2.1A above.
7.2.1.2.7In making the statements he made in the first and second interviews, as pleaded in paragraphs 7.2.1.2.1 and 7.2.1.2.2 above, the plaintiff was not being truthful.
7.2.1.2.8In the alternative, the matters pleaded in paragraphs 7.2.1.2.3 – 7.2.1.2.6 above constitute reasonable grounds for believing or suspecting that the plaintiff was not being truthful in making the statements he made in the first and second interviews, as pleaded in paragraphs 7.2.1.2.1 and 7.2.1.2.2 above.
7.2.1.2.9The plaintiff’s conduct in denying that he had had a sexual relationship with Corinna Marr, in combination with the matters pleaded in paragraphs 7.2.1.2.3 above, constitute reasonable grounds for believing or suspecting that the plaintiff had a motive to murder Corinna Marr.
7.2.1.2.10The plaintiff’s conduct in making the statements he made in the first and second interviews, in combination with the matters pleaded in paragraphs 7.2.1.2.3 – 7.2.1.2.9 above, constitute reasonable grounds for suspecting the plaintiff of murdering Corinna Marr.
The Grounds of Appeal
The Commissioner of Police commenced his appeal against the non-party discovery order on 30 November 2007. At the request of the Commissioner and of Channel Seven, the hearing of the appeal was adjourned pending the determination by the Full Court of the plaintiff’s appeal against the master’s decision to allow Channel Seven to file the Second Further Amended Defence. The plaintiff is now seeking permission to appeal the orders I made on 16 May 2008. I have declined to adjourn further the hearing of the Commissioner’s appeal pending the hearing and determination of that application for permission to appeal.
The Commissioner’s Amended Notice of Appeal contains seven separate grounds of appeal. However, those grounds reduce, in effect, to three. The first is that the making of the order for non-party discovery was premature. The master should, the Commissioner contends, have adjourned consideration of the making of the order until all issues concerning the content of Channel Seven’s plea of justification, including the exercise of appeal rights, have been concluded. Secondly, to the extent that the master may have upheld the application for non-party discovery by reference to an argument by Channel Seven concerning mitigation of damages, he was in error because there is no plea by Channel Seven that the plaintiff has failed to take reasonable steps to mitigate his loss. Thirdly, the Commissioner submits that the master failed to consider his submission that Channel Seven was seeking non-party discovery as part of a “fishing” expedition, ie, for an improper purpose.
The Nature of the Appeal
The circumstances which have occurred in this matter make it appropriate to consider the nature of this appeal against the master’s decision. The master’s decision was made at a time when Channel Seven was relying upon its Second Further Amended Defence and at a time when an appeal against the order allowing the defence to be amended in that form was unresolved. Channel Seven no longer rely upon that defence but instead upon its defence in the form of the TFAD. As noted, there is an undetermined application for permission to appeal to the Full Court against the orders allowing Channel Seven to amend its defence in those terms. That being so, there is a question as to whether the present appeal is to be determined by reference to the circumstances which existed at the time the master made his order on 16 November 2007, or by reference to the present circumstances.
Section 50(1)(b) of the Supreme Court Act 1935 provides that an appeal lies against the judgment of the court constituted of a master. The appeal is governed by the Supreme Court Civil Rules 2006. Absent any order by a judge to the contrary, the appeal is to be heard and determined by the court constituted by a single judge.[4] This appeal does not require permission. By r 292(1) the appeal is to be by way of re-hearing. The court is to determine the appeal as the justice of the case requires (rr 292(2), 292(3)(b)), and the court has power, in its discretion, to hear further evidence on questions of fact (r 292(3)(a)). In my opinion, the Rules contemplate the second kind of appeal considered by Cox J in Wigg v Architects Board of South Australia.[5] That is to say, the appeal is a re-hearing on the documents considered at first instance but with the court having power to receive further evidence. The court is to consider whether the decision at first instance ought to be affirmed or overturned in the light of the material before the court at the time it hears the appeal.[6] In the present case, that material includes the present plea of justification. It no longer includes the plea of justification contained in the Second Further Amended Defence.
[4] Rule 280(1)(a).
[5] (1994) 36 SASR 111.
[6] Ibid at 113. See also In re Flinders Trading Co Pty Ltd (1977) 20 SASR 14 at 27-8.
There is a further reason why that is the appropriate course to adopt. The master did not provide any reasons for his decision of 16 November 2007. In those circumstances it is appropriate for the appeal judge to consider the exercise of the discretion afresh.[7] It is appropriate that the fresh consideration should be done by reference to the present circumstances and not by reference to those which no longer have currency.
[7] Troisi Steel Fabrications Pty Ltd v Johns Perry Industries Pty Ltd (1992) 165 LSJS 333 at 334.
Should Consideration of Channel Seven’s Application Have Been Deferred?
The affidavit filed by Channel Seven in support of the application for non-party discovery indicates that it is its plea of justification to which the documents sought by way of non-party discovery are said to be directly relevant. That being so, the Commissioner submits that consideration of Channel Seven’s application should have been adjourned until the fate of the plaintiff’s challenge to that pleading is known. At the time of the master’s decision, that fate depended upon the outcome of the plaintiff’s appeal to the Full Court which had been heard on 9 November 2007. At present, it depends upon the outcome of the plaintiff’s application for permission to appeal to the Full Court and, if permission is granted, on the disposition of that appeal. If the appeal succeeds (as did the plaintiff’s previous appeal) and the plea of justification is struck out, the documents sought will cease to be relevant.
The Commissioner contends that in the meantime, he should not, as a non-party, have to allocate time and resources to a task which may turn out to be unnecessary. The fact that Channel Seven will have to meet his costs in providing the non-party discovery is not a sufficient answer as those costs will not compensate fully for the time, resources and distraction from other priorities which compliance with the order will entail. The last consideration is particularly important because the investigation of Ms Marr’s death has been conducted by the Major Crime Section. The work of that Section is often conducted in circumstances of high pressure. It would be contrary to public policy for the energy and resources of the Major Crime Section to be diverted from its essential work until it is known whether or not Channel Seven’s plea of justification will remain.
Related to this last submission was a submission that it is likely that public interest immunity will be raised by the Commissioner in relation to a large number of the documents. The Commissioner will have to identify the documents for which public interest immunity should be claimed. This task will add to the diversion of resources involved.
I regard these considerations as important. There are, however, countervailing considerations.
The fact is that a judge of this Court has granted Channel Seven leave to amend its Defence in the form of the TFAD. It is important that the character of such a judgment be appreciated. It is not a contingent or provisional judgment, the operation of which depends upon it being confirmed on appeal. On the contrary, it is a judgment of the Court which binds the parties and will stand unless set aside on appeal or, in rare circumstances, set aside by the single judge himself.[8] Both the Court and the parties are entitled to proceed on that view of the matter. The fact that an appeal has been commenced, or permission to appeal has been sought, does not mean that the correctness of the decision in question should be regarded as dubious, or that the decision need not be acted upon. The principles which underline the Court’s approach to applications for stays of execution pending the hearing and determination of an appeal reflect these same considerations.[9]
[8] Rogers v The Queen (1994) 181 CLR 251 at 279, per Deane and Gaudron JJ.
[9] Cf Supreme Court Civil Rules 2006, r 300.
The fact that an appeal from an interlocutory decision of a judge requires the permission of the Full Court is also an important consideration.
At the time of the master’s decision, the Full Court had already heard the plaintiff’s appeal and had reserved its decision. At the present time, the plaintiff’s application for permission to appeal has not yet been resolved. It is not known when it will be resolved or when, if permission is granted, the appeal will be heard.
These proceedings have been marked by considerable delay caused by interlocutory disputes. Already more than four years have elapsed since the plaintiff commenced the proceedings. Acceding to the Commissioner’s submission will result in still further delay in the event that the plaintiff’s application for permission to appeal, or the appeal itself, are dismissed. The Commissioner submitted that in the context of the lapse of time which has already occurred, such further delay would not be significant. I do not regard that submission to be persuasive. I consider it to be important that the Court seek to reduce the time involved in completing the remaining interlocutory steps in this action.
As already noted the Commissioner has foreshadowed objections on the grounds of public interest immunity to producing for inspection the documents which Channel Seven seeks. That means that there is the prospect of further delay before all the issues arising from the application for non-party discovery can be finalised. On the other hand, some, and perhaps all, of the issues concerning the application for non-party discovery can be concluded during the time that the plaintiff’s application for permission to appeal is being resolved.

The Commissioner referred to Goldschmidt v Constable[10] in which the Court of Appeal considered whether the provision of particulars by a defendant of its plea of justification should be stood over until the plaintiff had made discovery. Greer LJ, in the judgment of the court, said:
… in a libel action the party who alleges that the defamatory statements are true must make out his case on the information which he had in his possession at the time when the defence was delivered. He is not entitled to wait for discovery in order to complete his attack, but must give full particulars before discovery.[11]
[10] [1937] 4 All ER 293.
[11] Ibid at 294.
I do not consider this passage to take the matter much further. The particulars of justification have been finalised in this matter. They provide the framework against which Channel Seven’s application for non-party discovery is to be assessed. Insofar as the Commissioner relied upon the proposition that a defendant must make out a plea of justification on the information in its possession at the time when the defence was delivered, I do not accept that submission. I doubt very much whether that is what Greer LJ intended. There is no reason in principle why a defendant pleading justification cannot seek additional evidence supporting that plea after the defence has been filed. Were it otherwise, there would be little point to the provision of discovery in such cases at all, whether from the plaintiff or from a non-party. In any event, the statement of Greer LJ in Goldschmidt is inconsistent with the later Court of Appeal decision in McDonald’s Corp v Steel.[12] In that case Neill LJ held that before a plea of justification is included in a defence the defendant should believe the words complained of to be true; should intend to support the defence of justification at the trial; and should have reasonable evidence to support the plea or reasonable grounds for supposing that sufficient evidence to prove the allegations will be available at the trial.[13] In my opinion, that is the proper principle to be applied in the present case.
[12] [1995] 3 All ER 615.
[13] Ibid at 621.
I repeat that I am concerned about the distraction of the Commissioner’s resources which compliance with an order of non-party discovery will entail. I also accept that the order for costs may not fully compensate the Commissioner for the time and energy which will be involved in complying with that order. Nevertheless, exercising the discretion afresh, I am satisfied that it is appropriate that the determination of the application for non-party discovery should not await the outcome of the plaintiff’s application for permission to appeal. I also consider the master’s decision to deal with the application at the time that he did was correct. It remains correct in the circumstances which now prevail.
Mitigation of Damage
It seems that in the hearing before the master, Channel Seven may have sought to support the application for non-party discovery by reference to issues of mitigation of the plaintiff’s loss. It is not known what, if any, significance the master attached to that submission. The Commissioner’s submission is that it is a matter which should not be accorded any weight. There is no plea in Channel Seven’s defence that the plaintiff has failed to take reasonable steps to mitigate his loss. If Channel Seven wished to make such a claim, it is a matter which should be pleaded.
It is not necessary to consider this submission further. On appeal, Channel Seven did not seek to support its application by reference to considerations of mitigation of loss. It relied only on its plea of justification. The Commissioner accepted that the documents sought by Channel Seven were relevant to its plea of justification. Subject to issues about the scope of the non-party discovery to be ordered, that plea provides an adequate basis for an order for non-party discovery directed to the Commissioner of Police.
Fishing Expedition
The final ground of appeal was that Channel Seven’s application was “fishing”. The submissions concerning this ground tended to use the word “fishing” in two senses. The first was the conventional usage, ie, that Channel Seven, not knowing whether the Commissioner had any material, was seeking the non-party discovery with a view to ascertaining whether its plea of justification could be made out at all. The second was that Channel Seven was using the process of non-party discovery to obtain access to information not otherwise available to it to support its plea of justification.
The first aspect of the submission was pressed only faintly. The fact and nature of Ms Marr’s murder and the responsibility of the Commissioner to investigate that murder by themselves make it almost inevitable that the Commissioner will have relevant documents. Further, Channel Seven supported its application by reference to an affidavit sworn by an investigating police officer on 20 February 2004 (used earlier in these proceedings by the plaintiff himself). That affidavit was sworn in support of an application by the Police seeking an order that the plaintiff participate in a forensic procedure. It set out the basis for the suspicion held by the Police at that time that the plaintiff had been involved in Ms Marr’s murder. The police officer’s affidavit makes it plain that Channel Seven does have a reasonable basis for supposing that the Commissioner does have documents directly relevant to its present plea of justification and is not simply “fishing” to see what he may have.
I do not consider that the second basis upon which the submission was made should be accepted. It is a legitimate usage of the non-party discovery procedure for a party to seek out evidence to support its claims.
Channel Seven’s Cross-Appeal
Channel Seven contended that the master had erred in not making any order at all in relation to paragraph 2 of its application. It submitted that no relevant distinction was to be drawn between the documents sought in paragraph 1, in respect of which the master did make an order, and those sought in paragraph 2 in respect of which no order was made.
The Commissioner of Police did not contend to the contrary. I am satisfied that in substance the cross-appeal of Channel Seven should be upheld.
The Form of the Orders
There remains the form of the orders.
The orders sought by Channel Seven would potentially require the Commissioner to list almost every document in his possession relating to the investigation of Ms Marr’s death. The documents to be disclosed would go beyond those relating directly to Channel Seven’s particulars of justification. Channel Seven submitted that it should be entitled to disclosure of any document at all which might assist it in making out its plea of justification, whether by reference to a matter already pleaded or otherwise.
The Court has a discretion with respect to the range of documents which a non-party should be ordered to disclose. That discretion must take account of a number of factors including the directness (or indirectness) of the relevance of the documents to the issues in the case; the coercive nature of the process; the extent to which the non-party is likely to incur expense or experience difficulty in complying with the order; and the extent to which compliance with the order will impinge upon the confidentiality of the information held by the non-party, or upon the privacy of the non-party or other persons. A non-party should not be required, under the coercion of a Court order, to disclose any more documents than are necessary to dispose fairly of the proceedings.[14] Ultimately the order should be framed so as to best serve the interests of justice in the particular case.
[14] Tipperary Developments v Western Australia [1999] WASC 62 at [23]-[27]; (1999) 21 WAR 250 at 255-6; Mobil Oil Australia Ltd v Guina [1996] 2 VR 34 at 37-8.
In the present case, it is appropriate that the orders take account of the prospect that non-party disclosure may require the Commissioner to disclose aspects of the investigation, or of the investigation methodology, which are confidential. In addition, the Court was informed that the documents held by the Commissioner are contained in 28 lever arch folders in addition to several boxes. That makes it appropriate that the number of documents required to be disclosed should be kept within reasonable bounds so as to avoid the order being the cause of oppression to the Commissioner.
It also seems that Channel Seven’s particulars of justification have been influenced by the content of the affidavit of the investigating police officer sworn 20 February 2004 to which reference was made earlier. That affidavit gives some indication of the types of directly relevant documents which the Commissioner may hold. An order directing the Commissioner to disclose only those documents which are directly relevant to Channel Seven’s existing plea of justification is also likely to reduce the burden upon the Commissioner in complying with the order, while at the same time serving the interests of justice in this case.
These were the considerations which underpinned the form of the order which I made on 30 May 2008. In addition, I declined to make a more general order that the Commissioner list documents “relating to” specified subject matters as sought by Channel Seven. The reach of the expression “relating to” is uncertain. I considered that the Commissioner should not have to make a subjective decision in relation to each document as to whether it “relates to” a particular specified subject matter.
Conclusion
These are my reasons for the orders made on 30 May 2008.