Doe v Fairfax Media Publications Pty Limited

[2017] NSWSC 1153

Supreme Court

New South Wales

Medium Neutral Citation:

Doe v Fairfax Media Publications Pty Limited [2017] NSWSC 1153

Hearing dates:

18 August 2017

Decision date:

30 August 2017

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

See paragraph [58]

Catchwords:

PRACTICE AND PROCEDURE – discovery – objections – privilege against exposure to penalties – self-incrimination – whether evidence may tend to prove person engaged in culpable conduct – proceedings concerning non-publication obligations – whether interests of justice require defendant to provide evidence – operation and effect of s 87 of Civil Procedure Act 2005 (NSW)

 

PRACTICE AND PROCEDURE – interrogatories – whether necessary – consideration of material already available to plaintiff – whether answers would be relevant

PRACTICE AND PROCEDURE – plaintiff was complainant in sexual offence proceedings – non-publication orders pursuant to s 578A of the Crimes Act 1900 (NSW) made in respect of aspects of plaintiff’s evidence at trial – defendants published an article that allegedly identifies or tends to identify the plaintiff – damages sought for breach of alleged statutory duty – breach of confidence and breach of non-publication order

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), ss 10, 15A
Civil Procedure Act 2005 (NSW), ss 3, 4, 56, 87,
Pt 6
Crimes Act 1900 (NSW), s 578A
Criminal Procedure Act 1986 (NSW), s 179
Evidence Act 1995 (NSW), ss 128, 128A
Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 1.05, 29.07
Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 21.2, 21.4, 22.1, Pt 21

Cases Cited:

Bax Global (Australia) Pty Ltd v Evans (1999) 47 NSWLR 538; [1999] NSWSC 815
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21
Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442
Fairfax Digital Australia and New Zealand v Ibrahim (2012) 82 NSWLR 52; [2012] NSWCCA 125
Hawkes v Schubach [1953] VLR 468
John Fairfax Publications Pty Limited v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324
Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201
O’Connor v SP Bray Ltd (1937) 56 CLR 464
Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Simmons (No 6) [2015] NSWSC 418; (2015) A Crim R 65
Reid v Howard (1995) 184 CLR 1; [1995] HCA 40
Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42
Vasil v National Australia Bank Ltd (1999) 46 NSWLR 207; [1999] NSWCA 161

Category:

Procedural and other rulings

Parties:

Jane Doe (Plaintiff)
Fairfax Media Publications Pty Limited (ACN 003 357 720) (First Defendant)
Michael Bachelard (Second Defendant)

Representation:

Counsel:
KP Smark SC (Plaintiff)
PW Gray SC (Defendants)

  Solicitors:
Mark O’Brien Legal (Plaintiff)
Banki Haddock Fiora (Defendants)

File Number(s):

2016/278384

Judgment

Introduction

1. By notice of motion filed on 14 July 2017 Jane Doe (the plaintiff) seeks orders for discovery and interrogatories against Fairfax Media Publications Pty Ltd, (the first defendant) and Michael Bachelard (the second defendant). The defendants oppose the orders sought.

The background to the application

The criminal proceedings in which the plaintiff was a complainant

2. The plaintiff was the complainant in sexual assault proceedings prosecuted in the District Court at Penrith before Knight DCJ in which Lindsay Jensen was indicted for sexual assault offences said to have been committed against the plaintiff between 1 January 2002 and 16 May 2002. On 13 April 2007, Knight DCJ made non-publication orders that prohibited the publication of the plaintiff’s evidence at the trial, in so far as she described the manner in which she was assaulted by the offender in respect of each offence and other uncharged sexual conduct; the plaintiff’s evidence at trial about her emotional and physical reactions to the offender’s sexual conduct; the publication of material attached to the affidavit of Jessica Purches sworn 10 April 2007; and evidence given at trial of the attacks made on the personal character of the plaintiff (the Non-Publication Orders). His Honour confirmed that the orders did not prevent the publication of the attacks being made.

The second defendant’s application for access

3. On 4 February 2016 the second defendant was permitted to inspect the court file of the trial before Knight DCJ (the District Court File) in so far as it contained the indictment, the exhibits, the transcripts and any record of a conviction, on the condition that he complied with the Non-Publication Orders. Notwithstanding that photocopying access had not been granted, the second defendant copied a note which had been hand-written by the plaintiff (the Note) which I infer was one of the exhibits at trial.

Correspondence before the proceedings were commenced

4. On 9 June 2016 the plaintiff’s solicitor, Mr O’Brien, wrote to the second defendant. He referred to having been provided with a draft article (which became the first publication, referred to below). He referred to s 578A of the Crimes Act 1900 (NSW) and alleged that the draft article contained many “identifiers” of the complainants in the two criminal proceedings. After listing the identifiers he continued:

“These cumulative identifiers are facts known to over 1030 members of the Plymouth Brethren Church made up of persons in the regional New South Wales town of Albury and other parishes where the girls are known. These persons are still resident in these areas and would readily identify the complainants upon reading the article.

Such identification is reinforced by the 2008 publication of your book ‘Behind the Exclusive Brethren’ which details the offences committed by Jensen in a chapter titled ‘Albury’ and no doubt would have been noticed by Church members.

Any published article containing any references likely to lead to the identification of the complainants will be referred to the Director of Public Prosecutions.”

The proceedings: the relief claimed by the plaintiff

5. It is common ground that a feature article written by the second defendant, entitled “Secrets of the Brethren” (referred to in the pleadings as “the first publication”) was first published in the weekend edition on 18 June 2016 and continues to be published online. It is also not in dispute that on or about 17 June 2016 the defendants published an article entitled, “Tony McCorkell reveals secrets of the wealthy Christian Sect Exclusive Brethren” (referred to in the pleadings as “the second publication”). The defendants tendered an online version of the article which was downloaded on 18 August 2017, the date of the hearing of the notice of motion.

6. The plaintiff commenced proceedings against the defendants by statement of claim filed on 16 September 2016, in which she claims damages, including aggravated damages for breach of statutory duty (relying on O’Connor v SP Bray Ltd (1937) 56 CLR 464; [1937] HCA 18); equitable compensation for breach of confidence and exemplary damages; and associated declarations. Her claims arise out of the publication by Fairfax in its daily newspaper The Sydney Morning Herald, in hard copy and online, of various articles. The plaintiff alleges that although neither publication named her, both publications either identified her or were likely to lead to her identification as a complainant in the sexual assault proceedings as proscribed by s 578A of the Crimes Act.

7. The plaintiff also alleges that the first defendant has published and continues to publish online an article entitled “Sect man jailed for sex abuse of girl”, which was first published on 17 February 2007.

8. The plaintiff alleges that the prohibition in s 578A of the Crimes Act gives rise to a statutory duty which the defendants owed to her, breach of which sounds in damages, including aggravated and exemplary damages. Further and in the alternative she claims that the defendants owed a duty to her not to disclose confidential information with respect to the facts and circumstances of her being a victim of repeated sexual assaults, breach of which sounds in damages, including exemplary damages. The plaintiff also alleges that the defendants breached the Non-Publication Orders and that, as a consequence, she is entitled to the relief claimed.

9. The defendants’ solicitors sought further and better particulars of the statement of claim by letter dated 6 October 2016, to which Mr O’Brien responded by letter dated 19 October 2016. Among the documents annexed to this letter was the record of the second defendant’s application for access to the District Court File.

10. In their defence filed on 14 November 2016 the defendants admit that in 2004 criminal proceedings were brought against Mr Jensen in relation to sexual assaults against a girl alleged to have been committed between 31 January 2002 and 16 May 2002 and that, in 2006, further criminal proceedings were brought against him for sexual assaults against a different complainant alleged to have been committed between 28 February 2002 and 1 January 2003. They admit the terms of the Non-Publication Orders. They also admit that the second defendant was granted access to the District Court File and that some documents were copied, including the Note. They deny that the first or second publications either identified the plaintiff or were likely to lead to her identification and deny that the plaintiff is entitled to the relief claimed.

Relevant legislative provisions

11. Section 578A of the Crimes Act relevantly provides:

“578A   Prohibition of publication identifying victims of certain sexual offences

(1)  In this section:

complainanthas the same meaning as in Division 1 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986.

matter includes a picture.

prescribed sexual offence has the same meaning as in the Criminal Procedure Act 1986.

publish includes:

(a)  broadcast by radio or television, or

(b)  disseminate by any other electronic means such as the internet.

(2)  A person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant.

Penalty: In the case of an individual-50 penalty unit or imprisonment for 6 months, or both; in the case of a corporation-500 penalty units.

(3)  This section applies even though the prescribed sexual offence proceedings have been finally disposed of.

(4)  This section does not apply to:

(a)  a publication authorised by the Judge or Justice presiding in the proceedings concerned,

(b) a publication made with the consent of the complainant (being a complainant who is of or over the age of 14 years at the time of publication),

(c) a publication authorised by the court concerned under section 15D of the Children (Criminal Proceedings) Act 1987 in respect of a complainant who is under the age of 16 years at the time of publication,

(d) an official law report of the prescribed sexual offence proceedings or any official publication in the course of, and for the purposes of, those proceedings,

(e)  the supply of transcripts of the prescribed sexual offence proceedings to persons with a genuine interest in those proceedings or for genuine research purposes, or

(f)  a publication made after the complainant’s death.

(5)  A Judge or Justice shall not authorise a publication under subsection (4)(a) unless the Judge or Justice:

(a)  has sought and considered any views of the complainant, and

(b)  is satisfied that the publication is in the public interest.

(6)  The prohibition contained in this section applies in addition to any other prohibition or restriction imposed by law on the publication of any matter relating to prescribed sexual offence proceedings.

(7)  Proceedings for an offence against this section shall be dealt with summarily before:

(a) the Local Court, or

(b) the Supreme Court in its summary jurisdiction.

(8)  If proceedings for an offence against this Act are brought before the Local Court, the maximum penalty that the Local Court may impose on a corporation is 50 penalty units.”

12. Section 87 of the Civil Procedure Act 2005 (NSW) provides:

“87   Protection against self-incrimination in relation to interlocutory matters

(1)  In this section:

civil penalty has the same meaning as it has in the Evidence Act 1995.

conduct includes both act and omission.

culpable conduct means conduct that, under:

(a)  the laws of New South Wales, or

(b)  the laws of any other State or Territory, or

(c)  the laws of the Commonwealth, or

(d)  the laws of a foreign country,

constitutes an offence or renders a person liable to a civil penalty.

order for production means an interlocutory order requiring a person (other than a body corporate) to provide evidence to the court or to a party to a proceeding before the court.

provide evidence means:

(a)  to provide an answer to a question or to produce a document or thing, or

(b)  to swear an affidavit, or

(c)  to file and serve an affidavit or a witness statement, or

(d)  to permit possession to be taken of a document or thing.

(2)  This section applies in circumstances in which:

(a)  an application is made for, or the court makes, an order for production against a person, and

(b)  the person objects to the making of such an order, or applies for the revocation of such an order, on the ground that the evidence required by the order may tend to prove that the person has engaged in culpable conduct.

(2A) This section does not apply in circumstances in which section 128A of theEvidence Act 1995 applies.

(3)  If the court finds that there are reasonable grounds for the objection or application referred to in subsection (2) (b), the court is to inform the person, or the person’s legal representative:

(a)  that the person need not provide the evidence, and

(b)  that, if the person provides the evidence, the court will give a certificate under this section, and

(c)  of the effect of such a certificate.

(4)  If the person informs the court that he or she will provide the evidence, the court is to cause the person to be given a certificate under this section in respect of the evidence.

(5)  The court is also to cause a person to be given a certificate under this section if the court overrules an objection to the making of an order for production, or refuses an application for the revocation of such an order, but, after the evidence is provided, the court finds that there were reasonable grounds for the objection or application.

(6)  Despite anything in this section, the court may make an order for production if it is satisfied of the following:

(a)  that the evidence required by the order may tend to prove that the person has engaged in culpable conduct,

(b)  that the culpable conduct does not comprise conduct that, under:

(i)  the laws of any State or Territory (other than New South Wales), or

(ii)  the laws of the Commonwealth, or

(iii)  the laws of a foreign country,

constitutes an offence or renders a person liable to a civil penalty,

(c)  that the interests of justice require that the person provide the evidence.

(7)  If the court makes an order for production under subsection (6), it is to cause the person to be given a certificate under this section in respect of the evidence required by the order.

(8)  In any proceedings:

(a)  evidence provided by a person in respect of which a certificate under this section has been given, and

(b)  evidence of any information, document or thing obtained as a direct or indirect consequence of the person having provided such evidence,

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

(9)  If a question arises under this section relating to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question.”

Discovery

13. The plaintiff seeks discovery of the following classes of documents:

1. All documents evidencing any communication between the defendants or either of them and the District Court of New South Wales in relation to the R v Jensen file.

2. All documents evidencing any consideration given by the defendants, or either of them, about the identification of the plaintiff in the first and/or second publication.

3. All documents evidencing any reaction to the first and/or second publication by any reader of the publication which refer to the plaintiff by name or description or as part of a class.

14. Part 21 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides for discovery and inspection. Rule 21.2 provides for discovery by class and requires that the class not be specified in more general terms than the court considers to be justified in the circumstances: UCPR r 21.2(2). There is also a requirement that an order not be made in respect of a document unless it is relevant to a fact in issue: UCPR r 21.2(4).

15. The discretion to order discovery is otherwise governed by Pt 6 of the Civil Procedure Act, which sets out the principles of case management that are to be applied. In deciding whether to order discovery, it is relevant to consider its utility and its cost. Discovery has significant forensic benefits since, as the list of documents is required to be verified, it may contain useful admissions as to the possession of documents at relevant times, thereby enabling a plaintiff to prove his or her case in circumstances where whether a document was in the possession of the defendant is a matter within the defendant’s knowledge. Moreover, discovery can reveal documents of which a plaintiff would otherwise have been unaware. The utility of discovery comes at a price. The location, classification, collation and verification of documents tend to be significantly more expensive than less onerous procedures such as the service of a notice to produce. Further, it is not necessarily the most efficient way of proving a fact in issue. Each case will depend on the class of documents sought, their relevance and the utility of discovery. Although there is no requirement that discovery be necessary before it is ordered, the utility of an order for discovery is generally of significant weight.

Category (1): communications relating to the Court File

16. Mr Smark SC, who appeared on behalf of the plaintiff, contended, in respect of category (1), that the plaintiff wished to prove the circumstances in which the second defendant accessed the District Court File and the defendants’ conduct in publishing the Note, although they had no permission to do so. Mr Smark also submitted that the plaintiff had a forensic reason for wanting to prove how the Note was copied. He contended that, if, for example, the second defendant had taken a photograph of the Note with his iPhone, this could amount to a consciousness of guilt, but that this inference would not be available if, say, the second defendant had requested that an officer of the District Court photocopy the document for him.

17. Mr Gray SC, who appeared on behalf of the defendants, submitted that there was no relevant fact in issue. He argued that the plaintiff had particularised the application which the second defendant had made for access to the District Court File. The plaintiff’s solicitor not only confirmed in the particulars that it was in writing but he also attached a copy of the relevant communications between the District Court and the second defendant. Mr O’Brien also confirmed that access was granted by P West, Assistant Registrar, in writing. A copy of the grant of access (Record of Application) was also attached to the answer to particulars. Mr Gray relied on the admissions made by the defendants in the defence that the second defendant had been granted access to the District Court File as described in the Record of Application on the conditions specified in that document.

16. There is considerable force in the defendants’ submissions. In order for the plaintiff to prove her case concerning the defendants’ access to the District Court File and the copying of the Note, she can rely on the admissions to that effect made by the defendants in the defence and the correspondence leading up to the grant of access and the Record of Application. The defendants have admitted that whatever consent was given was contained in the Record of Application, when read together with the Non-Publication Orders. There is no record of photocopying access, as opposed to access for inspection, being given. The defendants have also admitted on the pleadings that the plaintiff did not consent to the publication of the Note and that the presiding judge did not authorise its publication and that neither the presiding judge nor the plaintiff consented to, nor authorised either of the publications.

17. I am not satisfied that there is a fact in issue which has not already been resolved by the admissions made by the defendants or the documents which are already in the plaintiff’s possession and which were the subject of particulars. I am not satisfied that it would be material whether the second defendant photographed the Note with an iPhone, or obtained a photocopy. The first publication contained a reproduction of the Note, thereby establishing that the defendants had a copy, however it was physically obtained. In these circumstances, I am not persuaded that it is in the interests of justice to require the defendants to give discovery of the documents in category (1).

Category (2): documents evidencing consideration given by the defendants concerning the identification of the plaintiff in the publications

20. The plaintiff argued that category (2) was relevant to the state of mind of the defendants as to the identification of the plaintiff, which was, in turn, relevant to her claim for exemplary damages, which is made in [15], [22] and [29] of the statement of claim.

21. The defendants opposed category (2) on the basis that a plaintiff is not entitled to have the defendants assist in the proof of exemplary damages, which, as a matter of principle, requires the proof of serious misconduct. They relied on what was said in Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 (Rich v ASIC) at [24] that the privilege against exposure to a penalty serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it.

22. Further, and in the alternative, they submitted that the second defendant ought not be required to provide discovery because of his privilege against self-incrimination and that the first defendant ought not be ordered to discover such documents because such production would tend to undermine the second defendant’s privilege. They relied on the possibility that the second defendant’s conduct could amount to an offence under s 578A of the Crimes Act, or criminal contempt of court by breach of the Non-Publication Orders.

23. I am not persuaded that what was said in Rich v ASIC has any particular application to the defendants in the present case in terms of their exposure to exemplary damages, in light of what the High Court said subsequently in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21 (CFMEU v Boral). In CFMEU v Boral, the appellant appealed against an order for discovery which had been made against it in proceedings for contempt. The original application for discovery had been refused by an Associate Justice on the ground that contempt proceedings were criminal proceedings. The Supreme Court had allowed the appeal and directed discovery of documents. The Court of Appeal’s refusal of the union’s application for leave to appeal was affirmed by the High Court. The High Court held that the principle that an accused person cannot be compelled to assist the prosecution to discharge its onus of proof did not provide a basis for the union to resist an order for discovery of the documents. The rule in question in CFMEU v Boral was r 29.07(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Victorian Rules), which empowered the Court to order discovery. It applied to civil proceedings under r 1.05(1) of the Victorian Rules. It was held that contempt proceedings were civil proceedings. It broadly corresponds with UCPR, r 21.2.

24. The majority in CFMEU v Boral said of r 29.07(2) at [34] (French CJ, Kiefel, Bell, Gageler and Keane JJ):

“If r 29.07(2) is given its literal operation, its terms are sufficiently clear to authorise the order for discovery that was made in this case. The effect of an order under r 29.07(2) is plainly to override the right of the party against whom it is made to keep its papers private, as well as any entitlement that party might otherwise have to refrain from assisting the other party in the proceedings against it.”

25. Their Honours referred at [36] to the “companion principle” which is that, under the common law, the prosecution cannot compel the accused to assist it to discharge the onus and said at [37] that the companion principle is a “companion” of criminal trials. At [38] their Honours continued:

“Secondly, no question arises under r 29.07(2) of the Rules as to the appellant being required to give evidence against itself as a witness for the prosecution. The documents required to be discovered speak for themselves. In the nature of things, such documents have been brought into existence in the course of the conduct of the corporation's affairs by or through other (natural) persons acting in the service of the corporation.”

26. Section 3 of the Civil Procedure Act defines “civil proceedings” as “any proceedings other than criminal proceedings”. By operation of s 4 of the Civil Procedure Act, the Act applies to civil proceedings in this Court, including the present proceedings. The UCPR apply to these proceedings, since they are civil proceedings in this Court: UCPR, r 1.5. I am not persuaded that there is any relevant distinction between the applicable Victorian Rules and the relevant UCPR. It follows that, subject to one further matter to which reference will be made below, there can be no objection on the grounds of Rich v ASIC, to an order for discovery against the defendants on the ground that they ought not be required to assist the plaintiff to prove her claim for exemplary damages.

27. The further matter is the possibility that, in order to provide verified discovery as required by UCPR r 21.4, the first defendant will have to make enquiries of the second defendant, which will, in turn, expose the second defendant to the risk of self-incrimination, in respect of which a privilege applies. The defendants argued that, in order to protect the second defendant’s privilege against self-incrimination, neither defendant ought be required to give discovery.

28. I have been unable to find an authoritative statement of the mental element required to establish the offence under s 578A of the Crimes Act. As I have not heard full argument on the matter, it would be inappropriate for me to determine it. However, I am prepared to assume for present purposes that the prosecutor must prove that the defendant (in this case the second defendant) was at least reckless as to the circumstance that the publication identified, or would tend to, identify the plaintiff. The second defendant’s state of mind is also relevant to a potential charge of contempt for breach of the Non-Publication Orders.

29. In response to the defendants’ submissions, the plaintiff contended that s 87(6) of the Civil Procedure Act applied and the defendants ought be required to give verified discovery and that I should issue a certificate to the second defendant pursuant to s 87(7) of the Civil Procedure Act in order to protect his privilege.

30. Section 87 of the Civil Procedure Act, like the corresponding provisions in the Evidence Act 1995 (NSW), ss 128 and 128A, constitute a statutory abrogation of the privilege against self-incrimination, to which I am obliged to give effect: Vasil v National Australia Bank Ltd (1999) 46 NSWLR 207; [1999] NSWCA 161 at [43] (Fitzgerald JA, Stein JA agreeing); and Bax Global (Australia) Pty Ltd v Evans (1999) 47 NSWLR 538; [1999] NSWSC 815. The statements in Reid v Howard (1995) 184 CLR 1; [1995] HCA 40 at 14 about the availability of the privilege to protect persons from being required to give discovery and answer interrogatories are no longer applicable in circumstances covered by s 87 of the Civil Procedure Act or the corresponding provisions of the Evidence Act.

31. I turn now to the provisions of s 87(6) of the Civil Procedure Act. I am satisfied that the evidence required by an order for discovery of category (2) may tend to prove that the second defendant has engaged in culpable conduct (whether a breach of s 578A of the Crimes Act, breach of the Non-Publication Orders or contempt) since it may prove, by way of hypothetical example, that the second defendant adverted to the potential for the article to identify the plaintiff but decided that the detail, which tended to identify the plaintiff, ought be included because it gave the article greater appeal to potential readers. I am not persuaded that this matter ought affect the first defendant’s obligation to give discovery since the first defendant could comply with the obligation to verify the list by having someone other than the second defendant swear the affidavit. As the relevant laws are all laws of New South Wales, I am also satisfied of the matter in s 87(6)(b) of the Civil Procedure Act.

32. It is important to note that s 87(6)(a) of the Civil Procedure Act speaks in terms of “culpable conduct”, which is relevantly defined in s 87(1) to mean conduct that constitutes an offence. Thus it would not appear to be to the point that an offence under s 578A of the Crimes Act is to be dealt with summarily (s 578A(7)) and must therefore be charged within six months: s 179(1) of the Criminal Procedure Act. That period has passed in respect of the print publication. However, it would still be open for charges to be laid in respect of the online publication, at least against the first defendant: Fairfax Digital Australia and New Zealand v Ibrahim (2012) 82 NSWLR 52; [2012] NSWCCA 125 at [43] (Basten JA, Bathurst CJ and Whealy JA agreeing).

33. As to the matter in s 87(6)(c) of the Civil Procedure Act, I am satisfied that it is in the interests of justice that the second defendant be required to “provide the evidence” (within the meaning of the definition in s 87(1) of the Civil Procedure Act). If the plaintiff’s allegations give rise to a cause of action known to the law (a matter which will be determined at trial) and if such cause of action permits an award of exemplary damages (which will also be determined at trial), her claim for such damages, which has been particularised in the statement of claim, would tend to be assisted by proof that the second defendant acted in “contumelious disregard” of his obligation not to breach relevant legal norms (s 578A of the Crimes Act, the Non-Publication Orders and any duty of confidence which might be owed in the circumstances). Although contumelious disregard can, in appropriate cases, be inferred, the documents in category (2) may contain direct evidence or admissions of that matter, which would otherwise be entirely outside the plaintiff’s means of knowledge.

34. I am persuaded for these reasons that it is in the interests of justice to make an order for discovery of the documents in category (2), which is an order for production within the meaning of s 87(6) of the Civil Procedure Act. It follows that I am obliged to cause the second defendant to be given a certificate pursuant to s 87(7) of the Civil Procedure Act in respect of the evidence required by the order.

35. I accept the defendants’ submission that an order that the first defendant provide discovery could adversely affect the privilege against self-incrimination of the second defendant: see Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 at [66]-[67] (Lander J). However, I am satisfied that it is in the interests of justice to require discovery. In these circumstances, I am obliged to grant a certificate under s 87(7) of the Civil Procedure Act. I propose to do so in terms which provide protection to the second defendant from the use of evidence which might incriminate him as a result of inquiries made of him by the first defendant in order to comply with its obligation of discovery. That way, the documents will be discovered but the second defendant’s privilege against self-incrimination will be protected to the extent contemplated by s 87 of the Civil Procedure Act.

Category (3): documents evidencing the reaction of any reader to the first or second publications which refer to the plaintiff by name or as part of a class

36. The plaintiff seeks discovery of category (3) in order to obtain evidence, or further evidence, that the first or second publication identified or tended to identify her. The defendants opposed the category on the basis that the plaintiff has already particularised those persons who identified her from the publications and, indeed, served affidavits from them. They also relied on the second defendant’s privilege against self-incrimination.

37. I am not persuaded that it would advance the just, quick or cheap resolution of the real issues in the proceedings to order discovery in the terms sought in the redrafted category (3). However, since identification of the plaintiff is an issue, it is in the interests of justice to give the plaintiff access to such documents as are in the defendants’ possession which indicate that third parties have identified the plaintiff from the publications. I propose to limit the category by requiring the defendants to provide discovery of documents evidencing the reaction of readers which refer to the plaintiff by name. For the reasons given above with respect to category (2), I am satisfied that it is in the interests of justice to order discovery of category (3) as amended and to cause a certificate to be issued to the second defendant pursuant to s 87(7) of the Civil Procedure Act.

Interrogatories

38. The plaintiff has proposed that the first defendant answer 41 separate interrogatories, some of which have sub-questions, and that the second defendant answer 12 interrogatories, some of which also have sub-questions. There is an overlap in the interrogatories sought which makes it convenient to deal with the interrogatories by topic rather than by defendant.

39. The power to grant interrogatories is conferred by UCPR r 22.1. For present purposes the relevant constraint is that an order is not to be made unless the court is satisfied that the order is necessary at the time it is made: UCPR r 22.1(4). The word “necessary” means, in this context, “reasonably necessary”, rather than “essential”: Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 at [51] (Gaudron, Gummow and Callinan JJ).

Interrogatories 1-4 to the first defendant: continued publication

40. Interrogatories 1-4 seek admissions as to the continued online publication of the second publication. I am not persuaded that these interrogatories are necessary. The first defendant downloaded the second publication from its website on the morning of the hearing and tendered it. It is open to the plaintiff to do the same, at any time, including on the date of the final hearing. That it might be relatively easy for the first defendant to answer these interrogatories does not make them necessary. I decline to order the first defendant to answer draft interrogatories 1-4.

Interrogatories 5-29 to the first defendant: extent of publication

41. Interrogatories 5-9, which are sought against the first defendant, seek answers about the sales and readership of The Sydney Morning Herald by reference to States of Australia as well as the readership of the online version, which is measured by hits. Interrogatories are also asked about the location of the user (by reference to State) who was responsible for a hit.

42. Neither the first nor the second publication named the plaintiff. In these circumstances, it is reasonable to infer that anyone who read the article and identified the plaintiff would have either known the substance of the story already or would have been privy to other pieces of information from which the inference could be drawn that an unnamed female in the article was the plaintiff. Unless one can distinguish between those readers who were privy to the additional information from which such identification could be made and those who were not, the figures obtained as to sales and readership would be meaningless. Although one would expect that a higher proportion of those living in Albury might identify the plaintiff than those living in Hobart, this, too, would be speculative. The same considerations would apply to the issue whether the publications tended to identify the plaintiff. I am not persuaded of the utility, much less the necessity, of these interrogatories.

Interrogatories 30-33 to the first defendant and interrogatories 1-4 to the second defendant: reaction

43. The plaintiff seeks interrogatories from both defendants as to the reactions of third parties to the publications. It is sufficient to extract interrogatories 1-2 to the second defendant about the first publication, since the other interrogatories are in similar terms. The proposed interrogatories 1 and 2 to the second defendant are:

“1.   Since the publication of the first publication, has any person spoken to you or written to the [sic] you or otherwise communicated with you about the plaintiff in relation for the first publication?

2.   If the answer to the preceding interrogatory is in the affirmative please identify:

(a)   the name of each person;

(b)   the date of each communication;

(c)   the substance of each communication. In the case of written communications, please annex a copy to your answers.”

44. There is an inevitable overlap between discovery category (3) and proposed interrogatories 1 and 2. The interrogatories are wider, in that they seek oral and other non-written communications, as well as written communications, and are not limited to “readers”, although as a matter of practice, one would imagine that it would be unlikely that a person who had not read the publications would communicate with the defendants. I am not persuaded that these interrogatories are necessary, particularly as I propose to order discovery of the amended category (3).

Interrogatories 34-37 to the first defendant and interrogatories 5-8 to the second defendant: identification of the plaintiff

45. Interrogatories 34-37 to the first defendant and interrogatories 5-8 to the second defendant are in a similar form. Interrogatories 5-8 to the second defendant are as follows:

“5.   At the time of publication of the first publication and or second publication did you believe that you were precluded from identifying the plaintiff as a victim of sexual assault(s)?

6.   If the answer to the preceding interrogatory is in the negative, did you give any consideration prior to the publication of the first publication and or second publication to whether you should or should not identify the plaintiff as a victim of sexual assault(s)?

7.   If the answer to the preceding interrogatory is in the affirmative, what consideration was given by you, and what steps were taken as a result of that consideration?

8. At the time of publication of the first publication and or second publication were you aware of the duty imposed by s. 578A of the Crimes Act 1900 (NSW)?”

46. The plaintiff submitted that answers to these interrogatories are necessary in order to establish the defendants’ knowledge regarding identification of the plaintiff, which is relevant, and necessary, for the plaintiff’s claim for exemplary damages.

46. The defendants objected to these interrogatories on the same basis as set out above: that the Court ought not compel a defendant to assist the plaintiff to prove a claim which requires proof of serious misconduct since the plaintiff, as a pre-condition to making such a claim, must already have a basis for making the allegation. As referred to above, I do not accept this statement of general principle. Whilst it is well-established that an allegation of serious misconduct ought not be made unless there is a basis for it (Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201 at 203-204), it does not follow that the processes of the court cannot be used by plaintiffs to prove such allegations, subject to the question of self-incrimination which has relevantly been abrogated by s 87 of the Civil Procedure Act.

47. Interrogatories 5-8 to the second defendant and the corresponding interrogatories to the first defendant are pressed by the plaintiff as being relevant to exemplary damages. There is a temporal element to the determination whether they are necessary in that the order must be “necessary at the time it is made”. There is some difficulty in concluding that it is necessary that interrogatories be ordered when they pertain to damages in circumstances where there are real questions whether the alleged breach of s 578A of the Crimes Act, even if made out, would give rise to a private right of action which sounds in damages. Mr Smark conceded that such a cause of action was “contentious”. The same might be said for the claims for damages for breach of an alleged duty of confidence in the present case and breach of the Non-Publication Orders. If there are no such rights of action, then the question of damages is hypothetical since it will not arise. However, I note that the defendants’ opposition to the ordering of interrogatories as to identification was not based on any alleged untenability of the causes of action alleged by the plaintiff. Accordingly, my decision whether to allow these interrogatories does not turn on any assessment of the force of the plaintiff’s argument that, even if the allegations made in the pleading are made out, she would be entitled to damages, including exemplary damages.

48. I have given consideration to whether the question of these interrogatories ought be deferred until issues of liability have been determined. However, no party sought separate determination of liability. In these circumstances I am not persuaded that it would be appropriate to defer the ordering of interrogatories until later on that basis.

49. I will now turn to whether these interrogatories are “necessary”. There is considerable force in the plaintiff’s submission that the interrogatories are necessary. Without admissions by the defendants, it may be difficult, if not impossible for the plaintiff, to establish any intentional wrongdoing associated with the publications. There is no reason in principle why interrogatories which seek admissions about the defendants’ states of mind ought not be ordered since their states of mind are germane to the question whether exemplary damages are appropriate (if otherwise available as a matter of law): Hawkes v Schubach [1953] VLR 468 at 472 (Barry J, obiter).

50. Neither of the publications on its face names or would appear to otherwise identify the plaintiff to anyone who might not already know the underlying facts or what occurred at the trial before Knight DCJ. Although details are given in the publication, they do not appear to be more than descriptive. Were the facts stated baldly without reference to locality and context, they would hardly warrant publication. To report, without more, that a religious leader had sexually assaulted girls in his care or sphere of influence would do no more than refer, in general terms, to what Wood CJ at CL described in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [228] as “theregrettable reality of paedophiliac behaviour”. This reality is manifested in countless specific instances of such conduct across religious institutions, many of which have been the subject of proceedings in the District Court and the Court of Criminal Appeal. What is newsworthy about particular instances are the details: the location; the particular religion or denomination; the position of the wrongdoer or alleged wrongdoer; the age and gender of the victim or complainant; and his or her relationship with the religious leader. There is a question whether publication of these matters, even if they had the effect of identifying, or tending to identify, the plaintiff to those who already knew many, if not all, of the salient facts would infringe s 578A of the Crimes Act in any event.

51. I note that Parliament appears to consider that it is desirable that the media be permitted to be present in proceedings where a court is otherwise closed on the grounds of the age of the complainant: s 10(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW). I infer that this objective is to ensure that the media, which are regarded as the “eyes and ears” of the public can be privy to the actual facts in order that they can report on them: (John Fairfax Publications Pty Limited v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324 at [20] per Spigelman CJ), subject to the prohibitions in s 578A of the Crimes Act and s 15A of the Children (Criminal Proceedings) Act.

52. An admission by one or both of the defendants in answer to the interrogatories about identification, may enhance the plaintiff’s prospects of proving the allegations she makes, particularly those in support of her claim for exemplary damages. The converse may also be true. If the answers reveal that the defendants gave careful and conscientious consideration to the question whether the publications would identify or tend to identify the plaintiff and decided that they would not have that effect, the plaintiff might decide not to press her claim at least in so far as it relates to exemplary damages. For these reasons, I am satisfied that the order for interrogatories is necessary at this time for the purpose of UCPR r 22.1(4) and that such an order would advance the just, quick and cheap resolution of the real issues in dispute (s 56 of the Civil Procedure Act). I am also satisfied, on the same basis, that it is in the interests of justice, within the meaning of those words in s 87(6)(c), to require the defendants to answer these interrogatories (34-37 to the first defendant and 5-8 to the second defendant). I have had regard, in determining this latter question, to the prospects of the second defendant being prosecuted which I regard as remote: Cf. R v Simmons (No 6) [2015] NSWSC 418; (2015) A Crim R 65

53. In these circumstances I am obliged to cause a certificate to be issued to the second defendant under s 87(7) of the Civil Procedure Act.

Interrogatories 38-39 to the first defendant and interrogatories 9-10 to the second defendant: permission and knowledge

55. In draft interrogatory 38 to the first defendant and interrogatory 9 to the second defendant the plaintiff seeks to ask whether the defendant obtained the plaintiff’s permission for the publications. This interrogatory is not necessary as the defendants have made an admission to that effect in [12] of their defence.

56. Interrogatory 39 to the first defendant and interrogatory 10 to the second defendant seek admissions that the defendants received a copy of a letter sent by the plaintiff’s solicitor dated 9 June 2016. I understand that this is not in dispute. An interrogatory to obtain that admission is unnecessary, since an informal admission could be made, or a notice to admit facts could be served.

Interrogatories 40-41 to the first defendant and interrogatories 11-12 to the second defendant: the circumstances in which the Note was copied

57. In draft interrogatories 40-41 to the first defendant and interrogatories 13-14 to the second defendant the plaintiff seeks to ask about the circumstances of the copying of the Note by the second defendant. Mr Gray confirmed that the second defendant admitted that he had copied the Note. For the reasons given above in respect of category (1), I am not satisfied that, in light of the admission, these interrogatories are necessary.

Orders

58. For the reasons set out above, I make the following orders:

1. Order the defendants to provide discovery in accordance with Uniform Civil Procedure Rules 2005 (NSW) of the following categories of documents:

1. All documents evidencing any consideration given by the defendants or either of them about the identification of the plaintiff in the first or second publication; and

2. All documents evidencing any reaction to the first and/or second publication by any reader of the publication which refer to the plaintiff by name.

2. Order the first defendant to answer draft interrogatories numbered 34-37 in MOB-1 to the affidavit of Mark O’Brien affirmed 14 July 2017.

3. Order the second defendant to answer draft interrogatories numbered 5-8 in MOB-1 to the affidavit of Mark O’Brien affirmed 14 July 2017.

4. Costs reserved.

5. Direct that a certificate be issued to the second defendant pursuant to s 87(7) of the Civil Procedure Act in the form of the draft annexed, to which the answers to interrogatories referred to will be annexed when provided.

6. Direct the defendants to provide the verified answers to interrogatories to my Associate in order that the certificate can be prepared and issued to the second defendant as referred to in (5) above.

**********

CERTIFICATE ISSUED BY THE SUPREME COURT OF NEW SOUTH WALES

Under the Civil Procedure Act 2005 (NSW)

Case Details

Jane Doe v Fairfax Media Publications Pty Ltd and Michael Bachelard

2016/278384

Act & Section under which Certificate is issued

Section 87(7) of the Civil Procedure Act 2005 (NSW)

Certification

This Court certifies under s 87(7) of the Civil Procedure Act 2005 (NSW) that the list of discovered documents verified by Michael Bachelard on [INSERT DATE]; the answers to interrogatories [INSERT NUMBERS] given by Michael Bachelard and sworn on [INSERT DATE], and the answers to interrogatories [INSERT NUMBERS] given by Fairfax Media Publications Pty Limited and sworn on [INSERT DATE], copies of which are attached to this certificate, are evidence to which s 87(8) of that Act applies and therefore cannot be used against Mr Bachelard except in criminal proceedings for the falsity of the evidence.

Signed

Justice Adamson

Date

[to be inserted]

Note:

Section 87 relevantly provides:

87 Protection against self-incrimination in relation to interlocutory matters

. . .

(6) Despite anything in this section, the court may make an order for production if it is satisfied of the following:

(a) that the evidence required by the order may tend to prove that the person has engaged in culpable conduct,

(b) that the culpable conduct does not comprise conduct that, under:

(i) the laws of any State or Territory (other than New South Wales), or

(ii) the laws of the Commonwealth, or

(iii) the laws of a foreign country,

constitutes an offence or renders a person liable to a civil penalty,

that the interests of justice require that the person provide the evidence.

(7) If the court makes an order for production under subsection (6), it is to cause the person to be given a certificate under this section in respect of the evidence required by the order.

(8) In any proceedings:

(a) evidence provided by a person in respect of which a certificate under this section has been given, and

(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having provided such evidence,

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

Copy to

Michael Bachelard

Decision last updated: 30 August 2017