Fox v Channel Seven Adelaide Pty Ltd - [2019] SASC 188

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Civil)
FOX v CHANNEL SEVEN ADELAIDE PTY LTD & ORS
[2019] SASC 188
Judgment of The Honourable Auxiliary Justice David
12 November 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS
DEFAMATION - ACTIONS FOR DEFAMATION - DISCOVERY AND INTERROGATORIES - DISCOVERY - IN GENERAL
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - ORDERS FOR FURTHER AND BETTER DISCOVERY
In January 2018 the appellant commenced proceedings against the respondents alleging that he had been defamed in a series of television broadcasts. The appellant brought an interlocutory application in relation to disclosure obligations, pursuant to r 145 of the Supreme Court Civil Rules 2006 (SA), seeking the “raw footage” of the interviews with two individuals and the appellant himself, or in the alternative, the answers to a series of questions relating to the respondents’ practice relating to the storage of “raw footage” of interviews. The application was dismissed by a Master of this Court, giving rise to this appeal.
The appellant submitted the “raw footage” was directly relevant to the proceedings and therefore needed to be disclosed. The appellant further submitted that there was a reason to doubt the respondents’ claim that they had made reasonable efforts to find the material, and therefore should be ordered to answer the written questions. The respondents contended the raw footage was not directly relevant and that the Master had exercised her discretion relating to the written questions
Held:
1. The Master was correct in finding the raw footage was not directly relevant for the purpose of disclosure.
2. Although unnecessary to decide, the Master has appropriately exercised her discretion regarding the written questions.
Supreme Court Civil Rules 2006 (SA) r 145, r 136, referred to.
Lesses v Maras [2017] SASCFC 48, considered.

FOX v CHANNEL SEVEN ADELAIDE PTY LTD & ORS
[2019] SASC 188
DAVID AJ
Introduction and background

In January 2018, the appellant commenced proceedings against the respondents alleging that he had been defamed in a series of television broadcasts. At all material times, the appellant was a member of the Board of Directors and the Chief Executor of the “Camp Gallipoli Foundation” (the Foundation). The Foundation was at all material times a not-for-profit foundation governed by a Board of Directors who were subject to its constitution. It was created to perpetuate the memory of the sacrifice and spirit of Australian servicemen and women. Any surplus money raised was to be applied for the welfare of servicemen and women and their families. The first and third respondents are sued in their various capacities according to their involvement of television broadcasting. The second respondent is the journalist who interviewed the appellant and other people and presented the broadcast which is the subject of the defamation proceedings.
This is an appeal against the decision of a Master of this Court dismissing an interlocutory application in relation to disclosure obligations arising from these proceedings. The application was brought pursuant to r 145 of the Supreme Court Civil Rules 2006 (SA) (the Rules). Rule 145 provides as follows:
145—Non-compliance with obligations of disclosure and production of documents
(1)If there is reason to doubt whether a party has fully complied with the party's obligations to disclose and produce documents under this Part, the Court may make orders the Court considers appropriate to ensure that the obligations have been fully complied with and, if necessary, to enforce those obligations.
(2)The Court may (for example)—
(a) require the party, or another person who may be in a position to provide relevant information, to appear before the Court for examination; or
(b) require the party to answer written questions relevant to ascertaining whether the party has made full disclosure.
The interlocutory application sought orders requiring the respondents to answer a series of individual question pursuant to r 145(2)(b). The respondents sought answers to 21 questions, several of which had a number of sub-questions. These questions primarily related to whereabouts of “raw material” concerning interviews with two individuals during the five broadcasts, namely Mr Tony Ralph and Mr Damien Burchell. The raw material amounts to the original tape from which the broadcasts are extracted. The Master dismissed the application and it is against that decision from which the appellant now appeals.
Through a series of five broadcasts between 25 April 2016 and 24 January 2017 the appellant, through his pleadings, claims he was defamed. In a lengthy document, namely the third statement of claim, excerpts from the five broadcasts are set out and transcripts of those broadcasts are attached. The defamatory statements and imputations said to arise from those broadcasts are listed for each broadcast and related to the attached statements made in those broadcasts. Those alleged defamatory statements and imputations are detailed and copious but relate basically to the appellant’s involvement in the Camp Gallipoli foundation. The respondents, in their defence, deny that the statements give rise to the imputations as alleged but also call in aid other defences.
The basis of the application before the Master and the present appeal concern statements of a Mr Tony Ralph and a Mr Damien Burchall made during their interviews. Those statements are set out in the pleadings. The appellant sought by his application to the Master discovery of “raw footage” from which the statements originated. Although extensive discovery, irrelevant to this present appeal, was made by the respondents, they indicated to the Master that despite extensive inquiries they were unable to locate that “raw footage” of the interviews of those two people. To support that claim that they were unable to produce such “raw footage” the respondents relied upon an affidavit from a Mr Christopher Salter, the Director of News and Public Affairs, as to his unsuccessful search for the raw footage that was sought. The appellant argued before the Master, as he argues now, that those searches were inadequate. The appellant relied upon the affidavit of a Ms Amy Taeuber, who worked for Channel Seven from 2011 to 2016, which deposed to the practices of employees at Channel Seven in storing, accessing and preserving footage. The appellant therefore sought an order requiring the respondents to answer written questions relevant to ascertaining whether full disclosure had been made as required by r 145(2)(b).
Mr Tony Ralph was at the relevant time the National Chair of Legacy. In a broadcast on 25 April 2016 Mr Ralph said, speaking on behalf of Legacy, “I have to say we haven’t received any money”. Mr Damien Burchell, in a broadcast on 27 October 2016, speaking on behalf of Bowden Printing, said that that company did a lot of promotional work for the Foundation, and that they were chasing a debt which occurred in April as an overdue amount and they had not been paid.
It is those two interviews for which the raw material is sought and if unable to be found the appellant argues that an order should be made for answers to 21 questions as set out in the application to the Master.
The pleadings
In order to appreciate the arguments of both the appellant and the respondent, it is important to summarise the detailed pleadings. In a third statement of claim filed by the appellants on 4 June 2018 the appellant identifies the five broadcasts which form the basis of the proceedings. In relation to each broadcast the appellant sets out the defamatory material alleged and also sets out the defamatory imputations arising from that material.
That defamatory material is described as “stories” in the pleadings and attached to the pleadings are transcripts making out those stories.
The imputations alleged by the appellant in the pleadings range from the fact that the appellant is a fraud, a liar, has failed to account for monies given to the Foundation, has improperly directed monies paid to the Foundation to himself and is under investigation for improper behaviour, to name a few.
In their defence, filed 12 June 2018 and described in the pleadings as the “second defence”, in relation to each of “the stories” described as the “broadcasts” the respondent pleads that the stories were not defamatory and in the alternative pleads justification, the Lange qualified privilege, qualified privilege including aspects of reasonableness and fair comment and honest opinion. I set out r 136 of the Supreme Court Civil Rules:
136—Obligation to disclose documents
(1)Each party must disclose the documents that are, or have been, in the party's possession and—
(a) are directly relevant to any issue raised in the pleadings or affidavits filed in lieu of pleadings; or
(b) are to be disclosed by order of the Court.
It is agreed between all the parties that for documents to be disclosed they must be directly relevant to any issue raised in the pleadings. The dispute in this matter is primarily whether the raw materials sought to be obtained are directly relevant as required.
The application
I set out the original application.
The First Plaintiff, CHRISTOPHER FOX seeks the following orders or directions:
1.Within 7 days of the date of this order, the Defendants are to identify and inform the Plaintiff of the identity of the proper person or persons within the First Defendant and/or Third Defendant to provide detailed responses to the following matters:
a.     What medium(s) is raw footage of interviews recorded upon (“Initial Storage Medium”)?
b.     Once recorded, where is the Initial Storage Medium containing the raw footage of the interview stored?
c.     Once recorded, how long is the raw footage retained upon the Initial Storage Medium for?
d.     What is the cycle for the reuse of Initial Storage Mediums upon which raw footage has already been recorded?
e.     What records are maintained by the First Defendant and/or Third Defendant concerning:
i.the use of the Initial Storage Mediums;
ii.the preservation of information contained on the Initial Storage Medium;
iii.the location of where the Initial Storage Medium is stored;
iv.the erasing of information from an Initial Storage Medium; and/or
v.the redistribution of an Initial Storage Medium for reuse?
f.     Where it is anticipated that raw footage will be relevant to a series of stories to be broadcast over a number of months, will the raw footage be preserved for a longer period in case it needs to be used in a later broadcast? If so:
i.how is the raw footage preserved; and
ii.where is the raw footage stored?
g.     If raw footage is to be erased from the Initial Storage Medium, how is the raw footage deleted?
h.     When and why is raw footage transferred (uploaded) from the Initial Storage Medium to a secondary storage medium (i.e. for long term storage and/or for editing and/or for making copies (“Secondary Storage Medium”)?
i.      Once uploaded to a Secondary Storage Medium for how long will the raw footage be stored upon the Secondary Storage Medium?
j.      What records are maintained by the Defendants concerning:
i.the use of Secondary Storage Mediums;
ii.the preservation of information contained on Secondary Storage Mediums;
iii.the location of where Secondary Storage Mediums are stored;
iv.the erasing of information from a Secondary Storage Medium; and/or
v.the redistribution of a Secondary Storage Medium for reuse?
k.     When and why will raw footage stored on a Secondary Storage Medium be erased?
l.      Where was the raw footage of the interviews with Chris Fox, Tim Hanna, Peter Campbell, Brendan Nelson, David McLachlan, and Graham Moon located?
m.    On what medium(s) was the raw footage of the interviews with Chris Fox, Tim Hanna, Peter Campbell, Brendan Nelson, David McLachlan, and Graham Moon stored at the time of being located (i.e. upon an Initial Storage Medium and/or a Secondary Storage Medium)?
n.     Why hadn’t the raw footage of the interviews with Chris Fox, Tim Hanna, Peter Campbell, Brendan Nelson, David McLachlan, and Graham Moon been erased?
o.     If the raw footage of the interviews with Chris Fox, Tim Hanna, Peter Campbell, Brendan Nelson, David McLachlan, and Graham Moon was only located on an Initial Storage Medium, when and why was the raw footage erased from the Secondary Storage Medium?
p.     If the raw footage of the interviews with Chris Fox, Tim Hanna, Peter Campbell, Brendan Nelson, David McLachlan, and Graham Moon was only located on a Secondary Storage Medium, when and why was the raw footage erased from the Initial Storage Medium?
q.     What steps have been taken (and by whom) to locate the raw footage of the interviews with Tony Ralph and Damian [sic] Burchell?
r.     What medium was the raw footage of the interviews with Tony Ralph and Damian Burchell initially recorded upon?
s.     Was the raw footage of the interviews with Tony Ralph and Damian [sic] Burchell erased? If so, when and how?
t.     Were the Initial Storage Mediums used to record the raw footage of the interviews with Tony Ralph and Damian [sic] Burchell redeployed for use? If so, when?
u.     Was the raw footage of the interviews with Tony Ralph and Damian [sic] Burchell uploaded to a Secondary Storage Medium? If so, where was the Secondary Storage Medium stored and what has become of it?
v.     Are you able to say when the raw footage of the interviews with Tony Ralph and Damian [sic] Burchell was last in the possession of any of the Defendants (and, if so, how)?
2.Within 28 days of the date of this order, the Defendants are to file and serve and Affidavit from each of the proper person or persons identified pursuant to order 1 above providing responses to the questions set out in paragraphs 1(a) – (v).
3.Within 14 days, the Defendants are to make further and better disclosure of documents falling within the following categories:
a.     All documents recording the uploading of raw footage to and/or deletion of raw footage from the servers utilised by and/or maintained by any and/or all of the Defendants of the interviews performed with:
i.Mr Tony Ralph; and/or
ii.Mr Damien Burchell.
b.     A copy of the unedited raw footage (showing timecoding) uploaded to and stored upon the servers utilised by and/or maintained by any and/or all of the Defendants of the interviews performed with:
i.the Plaintiff;
ii.Mr Tony Ralph; and/or
iii.Mr Damien Burchell.
c.     All document recording instructions given to the Ingest department in respect of the tapes used to record the raw footage of the interviews performed with:
i.the Plaintiff;
ii.Mr Tony Ralph; and/or
iii.Mr Damien Burchell.
d.     Any and all documents recording a “shot list” (as that term is described in paragraphs 28 and 29 of the Affidavit of Amy Alice Taeuber affirmed 22 January 2019) prepared in respect of the interviews performed with:
i.the Plaintiff;
ii.Mr Tony Ralph;
iii.Mr Damien Burchell;
iv.Brendan Nelson;
v.David McLachlan; and/or
vi.Graham Moon.
e.     Any and all records relating to any and/or all of the broadcasts listed at paragraphs 9.1 – 9.5 of the Third Statement of Claim located upon the “Rundown program” (as that program is described in paragraph 34 of the Affidavit of Amy Alice Taeuber affirmed 22 January 2019).
4.The Defendants are to pay the Plaintiff’s costs of and incidental to this Application.
5.Such further or other orders as this Honourable Court deems appropriate.
The Master dealt with paragraphs 1 to 3b in her reasons. She considered that the applications concerning paragraphs 3c, 3d and 3e would be covered by her decision. In other words, if it was found that the raw material was not directly relevant, neither would the material in paragraphs 3c, 3d and 3e be directly relevant.
The Master dismissed the application and gave reasons.
The Master’s reasons
Her Honour first considered whether the raw footage satisfied r 136, namely that it was directly relevant to the proceedings. If it was, then the next question she considered she had to answer was whether the searches for that raw material, as described in the affidavit of Mr Salter, were adequate. She indicated in her reasons that if it was not directly relevant then questions of adequacy of the search for the raw material need not be considered.
As to the question of direct relevance she found that the statements of Mr Burchell and Mr Ralph, although included in the broadcasts, were never impugned on the pleadings, did not form part of the imputations arising from the alleged defamatory statements and were not part of any of the defences. She also pointed out that in the reply of the appellant the truth of one of the statements made by Mr Ralph was admitted.
Although it was not necessary she considered that the question of the adequacy of the search as set out in the affidavit of Mr Salter did not indicate that there were reasonable grounds to suspect that the respondents have deliberately, recklessly or carelessly failed to make proper disclosure of the raw footage.
Furthermore, an argument was put to her, as it has been put to me, that the absence of an affidavit or any material from the second respondent, Mr Gout, who was the interviewer of all of the broadcasts indicated or pointed to some inference that the raw material had not been properly disclosed. The Master rejected that argument also.
Appeal
The appellant now argues that the Master erred in her findings. He argues that the raw footage is directly relevant on the basis that it allows the statements made in the broadcast to be seen in proper context. He also argues, as he did before the Master, that even if the third statement of claim does not amount to the raw footage being relevant, the defence as pleaded by the respondents, which includes that their conduct in the preparation and broadcasting of the broadcasts was reasonable, will be impossible to assess without access to the raw footage. He also argues that if that is so and the raw material is directly relevant, the Master should have then exercised her discretion in the appellant’s favour and required the questions sought to be answered.
Mr Heywood-Smith QC, counsel for the appellant, emphasised that the raw material of the interviews with Mr Ralph and Mr Burchell, even if irrelevant to the issue of whether the publications are defamatory, would be relevant to defeating the defences as set out in the pleadings. He argues that just because none of the particulars of the defamatory broadcasts rely upon passages of Mr Ralph or Mr Burchell, it does not mean that those passages are not significant when the Court turns to the defences, especially those that concern reasonableness. He argues that because the defences such as reasonable publication and honest opinion have been pleaded, the respondent must disclose all of its source material and have it subject to scrutiny.
Mr Heywood-Smith QC also argues that if he is correct on the question of direct relevance, then the affidavits of Mr Salter and particularly the absence of any material from Mr Gout indicates inadequate efforts of a reasonable search. Mr Salter swore an affidavit setting out the searches he had made for the raw material. He is the Director of News and Public Affairs of the Seven Network in Adelaide and is the appropriate person to conduct that search. He referred to the affidavit of Ms Amy Taeuber of 22 January 2019, which was also tendered before the Master and produced to this Court, concerning practices in relation to the storage of tapes and raw footage at the respondent’s establishment. He also spoke to the second respondent, Mr Hendrik Gout, who informed him of extensive searches for that material. Nevertheless, Mr Heywood-Smith QC argues that more could have been done and if the material is directly relevant then the application should have been successful.

Mr Doyle of counsel, for the respondents, referred me to the decision of the Full Court of South Australia in Lesses v Maras where the Court said: [1]
[109]… a plaintiff is confined to the pleaded words from which it is alleged that an imputation arises (such pleaded words to be construed in the context of the document as a whole).
[1] [2017] SASCFC 48.
He therefore argues that neither the statement of claim nor the defences as pleaded involve the statements of Mr Burchell and Mr Ralph. He argues that in particular the defences as pleaded do not relate to those statements at all. He argues that the pleadings do not impugn the statements by Mr Ralph or Mr Burchell and there is no challenge to the truth or veracity of what Mr Burchell and Mr Ralph say. He further argues in the alternative that on the material presented it is just a fact that every effort has been made to obtain that raw footage and those efforts are reasonable.
Consideration
Applying both r 136 and r 145 there appears to be no dispute that disclosure must be directly relevant to an issue raised in the proceedings. What Mr Ralph and Mr Burchell said on the footage is simple and clear and not impugned. Any suggestion that the raw material may have cast a different light on their very plain words is hard to imagine and comes into the realm of mere speculation. I also consider that the raw material was not directly relevant to any of the defences as pleaded. Those defences are in relation to imputations that have nothing to do with the statements of Mr Burchell and Mr Ralph. I also agree with the Master that their words are not part of the defamatory allegations. I can find no mistake made by the Master in her reasons and in my view she was clearly correct in her findings.
Although it is unnecessary to decide the alternative discretionary part of her decision as to whether the searches were reasonable, I find no basis to find that her discretion has miscarried or is based on any erroneous point of principle. In particular I reject the argument that the absence of any material or affidavit from Mr Gout could form the basis of any inference that the respondent is deliberately holding back material or has not made reasonable efforts to find it.
Conclusion
I dismiss the appeal.