Hazeldean v Austal Ships Pty Ltd - [2005] WASCA 171

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HAZELDEAN -v- AUSTAL SHIPS PTY LTD [2005] WASCA 171

CORAM: PULLIN JA
MILLER AJA

HEARD: 10 AUGUST 2005

DELIVERED : 7 SEPTEMBER 2005

FILE NO/S: FUL 135 of 2004

BETWEEN: BRADLEY WILLIAM HAZELDEAN
Applicant
AND
AUSTAL SHIPS PTY LTD (ACN 079 160 679)
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER NEWNES
Citation  :HAZELDEAN -v- AUSTAL SHIPS PTY LTD [2004] WASC 210
File No  :CIV 1177 of 2003

Catchwords:

Practice and procedure - Defamation - Slander - Interrogatories regarding words spoken - Whether affidavit by director of respondent company that he had made inquiries was sufficient - Whether persons of whom inquiry made and information provided should be specified - Whether O 37 r 6 applies to affidavits verifying answers to interrogatories

Legislation:

Rules of the Supreme Court 1971 (WA), O 26A, O 37 r 6

Result:

Application for leave to appeal dismissed

Category: B

Representation:

Counsel:

Applicant: Mr M J McPhee
Respondent: Mr G R Donaldson SC

Solicitors:

Applicant: Michell Sillar McPhee
Respondent: Clayton Utz

Case(s) referred to in judgment(s):

Hazeldean v Austal Ships Pty Ltd [2004] WASC 210
Hazeldean v Austal Ships Pty Ltd [2004] WASC 44
Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 25 May 1989
Re J L Young Manufacturing Co Ltd [1900] 2 Ch 753
Shannon v Whiting (1900) 26 VLR 392
Sharpe v Smail (1975) 49 ALJR 130
Stanfield Properties Ltd v National Westminster Bank [1983] 2 All ER 249
Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647

Case(s) also cited:

Australian Electrical Electronics Foundry & Engineering Union v Hamersley Iron Pty Ltd (1998) 19 WAR 145
Howden v Truth and Sportsman Ltd (1937) 58 CLR 416
Latoudis v Casey (1990) 170 CLR 534
Lawrance v Lord Norreys [1886 90] All ER 858
Oshlack v Richmond River Council (1998) 193 CLR 72
Rollond v Bank of Australia, unreported; FCt SCt of WA; Library No 980498; 3 September 1998

PULLIN JA: The applicant seeks leave to appeal against an interlocutory order made by Master Newnes on 24 August 2004 dismissing the applicant's application to strike out the respondent's defence on the ground of non‑compliance with an order to answer interrogatories.
The facts are fully recorded in the reasons of the Master in Hazeldean v Austal Ships Pty Ltd [2004] WASC 44 and in Hazeldean v Austal Ships Pty Ltd [2004] WASC 210. There is no need for me to repeat the facts. The first set of reasons were those of the Master when he ordered that interrogatories be answered and the second set of reasons are the reasons for the decision which is under review in these proceedings.
From the material set out in those of reasons it can be seen that the applicant is suing the respondent for inter alia, slander.
The applicant will be able to prove that the respondent, the applicant's former employer, gave an oral reference to Jervoise Bay Recruitment in relation to the possible future employment of the applicant. This may be proved as a result of the admission made by counsel for the respondent during the course of submissions in relation to a pre‑action discovery hearing. (See Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647 at 663).
What the applicant will not be able to prove, by that admission alone, is who it was who spoke on behalf of the respondent and what it was the spokesman said.
The applicant has available to him, by the process of discovery, a document entitled "Reference check on previous employees", the content of which is set out in the Master's reasons for decision. This is a document which has on the printed form the words "Reference provided by" and the words "Brad Day" added in manuscript. The form shows that Brad Day was a "Coordinator". Brad Day's signature has also been added, along with the date 6 June 2001. A manager's signature also appears on the form. His name appears to be "Estimoff". The content of the form is said by the applicant to contain defamatory material which the applicant believes was published to someone at Jervoise Bay Recruitment.
If this document is tendered at trial it may form the foundation of a submission by the applicant that an inference should be drawn that on 6 June 2001, Brad Day said to someone at Jervoise Bay Recruitment what is recorded on the "Reference check" document. It would not be appropriate for me to express any conclusion on that subject. There may be other relevant evidence which would support the inference. There may be evidence which prevents the inference being drawn.
By administering interrogatories the applicant hoped or expected to gain admissions that in the course of the admitted oral reference given to Jervoise Bay Recruitment, the alleged defamatory statements were published and published by a named person on behalf of the respondent. The interrogatories administered and the answers to them are set out in the Master's reasons in [2004] WASC 210.
The answers to interrogatories, however, did not meet the appellant's hope or expectation. The answers deny that the allegedly defamatory words pleaded in the statement of claim were said by an employee of the respondent. The answers to interrogatories deny that an employee of the respondent was asked a question by an employee of Jervoise Bay Recruitment about whether the plaintiff would be re‑hired or words to like effect.
The applicant in his proposed grounds of appeal raises an argument which was not advanced at the hearing before the Master. The submission is about the sufficiency of the information provided in the affidavits by Mr Atkinson about the inquiries he had made in order to answer the interrogatories. The applicant submits that O 37 r 6(2) and (2a) of the Rules of the Supreme Court apply. Order 37 r 6(2) and (2a) read:
"(2)An affidavit used for the purposes of -
(a) interlocutory proceedings …
may contain statements of information or belief.
(2a)An affidavit containing statements of information or belief must set out the sources or grounds of that information or belief".
The applicant points to Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 26 May 1989 which said that the normal form for statements of information or belief in affidavits should be:
"I have been informed by X and verily believe Y is the fact. The grounds of my belief are as follows."
The applicant submits that because the statements of belief set out in Mr Atkinson's affidavits are not in that form and do not state the source of the information relied on to answer the interrogatories, that the affidavit is not admissible (reference was made to Re J L Young Manufacturing Co Ltd [1900] 2 Ch 753 at 754) and that in consequence the interrogatories have not been answered. As a result, the applicant contends that the Master's decision should be set aside and instead a springing order made striking out the defence unless the interrogatories are answered in proper form.
In my opinion O 37 r 6(2) and (2a) are not relevant and in consequence the R L Young case does not assist.
The process of interrogation begins with an interlocutory application to obtain the leave of the court to permit the delivery of interrogatories. For the purpose of the leave application, affidavits in support (if any) have to comply with O 36 r 6(2)(a) and (2a). Once leave is granted, the interrogatories must be answered by a statement or a statement verified by affidavit. See O 27 r 1(2). In my opinion O 36 r 6(2) and (2a) do not apply to the latter affidavit because the affidavit verifying the statement containing the answers to interrogatories is not an affidavit "used for the purposes of interlocutory proceedings". The affidavit has been produced as a result of interlocutory proceedings but the verifying affidavit used is not now being used for the purpose of any interlocutory proceedings. If for some reason one of the parties wished to rely upon the affidavit for some interlocutory proceeding, they would not be able to do so because for the purposes of such interlocutory proceedings, O 37 r 6(2a) would have to be complied with. The R L Young case would apply in those circumstances. If the applicant wishes to tender the answers at trial the affidavit will not then be used for the purpose of an interlocutory proceeding.
I now speak more generally about answers to interrogatories. The case law makes it clear that the party interrogated must answer the interrogatories to the best of his or her knowledge, information and belief. See Sharpe v Smail (1975) 49 ALJR 130 at 132. The expression of the deponent's belief, based on his knowledge and information gained as a result of his enquiries, is treated as an admission which may be used at trial by the interrogating party. See Shannon v Whiting (1900) 26 VLR 392 at 395. It is necessary for the person answering interrogatories on behalf of a company to satisfy the court that proper inquiry has been made: Sharpe v Smail (supra) at 132. The inquiry must be made of servants or agents or former servants or agents who were acting in the course of their employment with the company.
With that brief review of the law I turn to the only other substantive ground of appeal which was that the Master:
"… erred in failing to strike out the defence of the respondent … on the basis that the … affidavits by Michael John Atkinson were an abuse of process in the light of certain earlier information given to the court by counsel for the respondent … as to the existence of the oral reference in question."
It is evident that the applicant has assumed that if an oral reference was given, it must have been a reference providing the information set out in the "reference check" document referred to above. The respondent's answers verified by Mr Atkinson's two affidavits, is that inquiries were made by Mr Atkinson of employees who reasonably might be expected to have any knowledge of matters relevant to, or that might assist in, answering the interrogatories. The affidavits also reveals that the inquiries led Mr Atkinson to the view that the only persons who were likely to have any information relevant to answering the interrogatories were present employees of the respondent to whom he spoke and made all due inquiry. In view of the fact that Mr Day's name and Mr or Ms Estimoff's names are on the "Reference Check" document, this can only mean that they were still employed by the respondent when Mr Atkinson made his inquiries.
In Stanfield Properties Ltd v National Westminster Bank [1983] 2 All ER 249, Sir Robert Megarry VC made the observations which are set out in [14] of Master Newnes' reasons in [2004] WASC 210. In my opinion the Vice‑Chancellor was saying no more than that the circumstances will determine how much information has to be provided to satisfy the party administering the interrogatories, and the court, that the person answering interrogatories has discharged all his or her obligation to make proper inquiry before answering interrogatories. In this case the affidavit satisfies me, and in my opinion should have satisfied the applicant, that the duty of inquiry had been discharged. The answers to interrogatories can only mean that Mr Day and manager Estimoff still worked with the respondent; that Mr Atkinson made inquiries of them; that Mr Day and manager Estimoff deny speaking the words complained of, or words "in the same sense", to an employee of Jervoise Bay Recruitment on or about 6 June 2001 and that Mr Atkinson believes those denials. If Mr Atkinson did not make inquiries of Mr Day and manager Estimoff, or does not believe their denials then the answers to interrogatories would be false and Mr Atkinson would be exposed to the full rigours of the Court's process for falsely swearing an affidavit.

In my opinion the application for leave to appeal should be dismissed.
MILLER AJA: I have had the opportunity of reading the draft reasons for judgment of Pullin JA. I agree with those reasons and have nothing to add. In my view, the application for leave to appeal should be dismissed.