Daniels v State of New South Wales (No 5)
[2015] NSWSC 1164
•31 July 2015
Supreme Court
New South Wales
Medium Neutral Citation: Daniels v State of New South Wales (No 5) [2015] NSWSC 1164 Hearing dates: 31 July 2015 Date of orders: 31 July 2015 Decision date: 31 July 2015 Jurisdiction: Common Law Before: McCallum J Decision: Leave to administer further interrogatories refused. Plaintiff to pay the defendants’ costs of, and associated with, the argument.
Catchwords: DEFAMATION – procedure – interrogatories – whether necessary – consideration of principle of proportionality Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Bleyer v Google Inc [2014] NSWSC 897 Category: Procedural and other rulings Parties: Dr Christopher Sydney Daniels (plaintiff)
State of New South Wales (first defendant)
Louise Manwaring (second defendant)
David Tooney (third defendant)Representation: Counsel:
Solicitors:
Plaintiff in person
S Chrysanthou (defendants)
Plaintiff self-represented
Crown Solicitor for New South Wales (defendants)
File Number(s): 2014/00145430 Publication restriction: None
Judgment – Ex Tempore
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HER HONOUR: These are proceedings for defamation listed for trial with a jury commencing on 7 September 2015. The second listing in the proceedings was held on 27 March 2015. On that date, the defendants were ordered to give discovery of certain categories of documents and to answer certain interrogatories. In accordance with the usual practice in this List, the parties either were expressly granted or correctly assumed the existence of a right to re-list the proceedings on reasonable notice.
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The plaintiff, Dr Daniels, has re-listed the proceedings exercising that right. He represents himself. The purpose of the re-listing was to seek further interrogatories set out in a five-page document. The application raises acutely the proper application of the principle of proportionality in the context of interlocutory applications in defamation proceedings: cf Bleyer v Google [2014] NSWSC 897. That principle is intended to be served by the Practice Note (SC CL 4) which contemplates a single occasion on which a party will seek any interlocutory steps in respect of the proceedings. It is not a coincidence that the Practice Note provides that, at the second listing, when those issues are determined, the proceedings will ordinarily be allocated a trial date by the Defamation List judge (in practice, what ordinarily happens on that date is that the parties are directed to approach the List Clerk in order to obtain a date but that is a question more of convenience than principle). That approach pays due regard to the fact that general damages in defamation proceedings are capped, which should inform the application of the principle of proportionality.
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The principle intended to be articulated in the Practice Note is that, in order to serve the overriding purpose of the Civil Procedure Act2005 (NSW) of having the real issues in the proceedings determined in a manner that is just, quick and cheap, the interlocutory processes in defamation proceedings should ordinarily be undertaken in a single step. In particular, parties should not assume that they are entitled to have discovery before administering interrogatories, nor to interrogate multiple times. In my view there is a compelling argument for, in most cases, declining further interlocutory steps for that reason alone. Such an approach would not, of course, be immutable and in a proper case the Court might well be moved to order further interrogatories but a strict approach is appropriate.
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The interrogatories in the present case are directed to the state of mind of the defendants at various times and, specifically, their honest belief in certain matters. Dr Daniels contends that answers to the interrogatories are necessary to establish what he alleges is the falsity of certain factual allegations made in the defence, the defendants' lack of honest belief in the truth of those allegations, their bad faith and their express malice. Those, he submits, are central issues in the case.
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Dr Daniels submits that the absence of any credible response to the interrogatories will "prove conclusively that the defendants knew with certainty from their investigation of [certain incidents] that these extremely serious allegations concerning such a very public incident with many witnesses available were completely baseless and false."
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Upon analysis, a large number of the interrogatories are, in my view, in the nature of cross-examination as to credit. Many of them (characterised by Ms Chrysanthou, who appears for the defendants, as the “why?” interrogatories) are certainly in that vein. Others are directed to specific factual issues but not in circumstances where the plaintiff cannot obtain that information from another source. Indeed, most are matters which it appears are factual contentions he, himself, will make in evidence. His point is that, where there is a factual dispute with the defendants about certain details, their wrongness in the assertions they have made establishes unequivocally their bad faith or the states of mind to which I have referred.
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I am not persuaded that the interrogatories satisfy the test of necessity. In my view, to allow a further round of interrogatories at this stage would trespass upon the principle of proportionality. Accordingly, the application is refused.
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I order that the plaintiff pay the defendants’ costs of the argument of and associated with the application determined today.
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Decision last updated: 03 September 2015