Hewitt v Pacific Magazines Pty Ltd - [2009] SASC 323

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
HEWITT v PACIFIC MAGAZINES PTY LTD
[2009] SASC 323
Reasons of Judge Lunn a Master of the Supreme Court
15 October 2009
PROCEDURE
Pre-action disclosure of documents sought under 6R 32 by plaintiff with claim in defamation against a magazine publisher for documents relating to the sources of the material published - "newpaper rule" as bar to order being made - held order would be made.

HEWITT v PACIFIC MAGAZINES PTY LTD
[2009] SASC 323
Reasons on plaintiff’s application for pre-action disclosure of documents.

JUDGE LUNN: In its edition of 4 April 2009 the New Idea magazine, published by the defendant, contained an article about the plaintiff entitled, “The other man in Bec’s life”. On the front cover was a picture of the plaintiff in the company of a man who was carrying her young daughter with a caption of “BEC’S OTHER MAN!”. On the contents page, in setting out what in the rest of the magazine, was an entry “6 BEC’S SECRET LIFE Meet the man making her smile”. On that contents page was also a picture of the plaintiff and her daughter bearing a caption “As her husband Leyton Hewitt focuses on reviving his career, devoted mum Bec is raising their children with a fabulous, caring, hunky man by her side”. In the article there are a number of pictures of the plaintiff in the company of her two children and a man who is identified , and spoken of, in the article as “’Minder Mark’, a former fitness trainer from Dallas, has given Bec a new lease of life – he’s her full-time “manny”!” The pictures were apparently taken at a marine park in Miami in the USA. The text of the article contains a number of quotations ascribed to unidentified persons. The author of the article is not identified.
The plaintiff did not consent to the pictures appearing in New Idea being taken or have any input into the text which appeared with them. The man appearing in the pictures, and who is referred to frequently in the text of the article, was not “Minder Mark”, but Shaun Cartwright, the brother of the plaintiff.
The plaintiff contends that what appeared in this edition of New Idea was defamatory of her in that the words and pictures were understood to mean that she was in a romantic relationship with a man other than her husband and was having a extra-marital affair. The defendant disputes that there are any defamatory imputations, but they are at least arguable.
In subsequent editions of New Idea on 11 and 18 April 2009 the defendant published corrections and an apology, but the plaintiff does not accept them as being sufficient. In the magazine of 18 April the defendant stated:
….. We referred to “Minder Mark” whom we believed was a child minder in the employ of the Hewitt family, and published photographs of him with Bec Cartwright and her children. We understand that no person by that name exists and that the man in the photographs is actually Bec Cartwright’s brother Shaun …..
By a summons and interlocutory application issued on 5 June 2009 under Rule 32 the plaintiff sought the following orders:
That the defendant, Pacific Magazines Pty Limited (ACN 097 410 896), make pre-action discovery to the Plaintiff of all evidentiary material in its possession, custody or power including, but not limited to, correspondence, letters, facsimile transmissions, reports, invoices, e-mail transmissions, file notes, internal memoranda and any and all information held in electronic form relating to or evidencing:
1.1All information and photographic material used and/or relied upon by the Defendant, and its officers or agents, in its research for, and preparation, editing and publication of, all text and photographs relating to or depicting the Plaintiff and/or any member of her family in the following editions of the magazine publication known as New Idea::
1.1.1 4 April 2009;
1.1.2 11 April 2009; and
1.1.3 18 April 2009;
1.2The source(s) of all information and photographic material as referred to in paragraph 1.1 above.
The application was supported by an affidavit of the plaintiff’s solicitor, Steven Dickinson, which exhibited various relevant documents. No objection was taken to the use of this affidavit.
The defendant did not file any affidavit in answer to that of Mr Dickinson. Its only affidavit, filed during the hearing, was one relating to a discrete issue of whether the plaintiff had invited public comment about her marital situation by previous interviews which she had given to the media. Clearly the defendant knew how it had acquired the photographs which appeared with the article and how it had come by what was stated in the article. As is its right, it did not see fit to disclose this information to the Court. This is information which is peculiarly within its knowledge. It is not in knowledge of the plaintiff who has put forward in evidence all she knows on relevant matters. Under the Rule in Blatch v Archer (1794) 88 ER 969 the evidence before the Court on this application is to be assessed in the light of the respective power of the plaintiff to produce it and the power of the defendant to refute it.
The relevant parts of Rule 32 are as follows:
32(1)If the Court is satisfied, on application by any person (the plaintiff) that the plaintiff may have a good cause of action and requires further information –
(a)     to determine whether a cause of action exists; or
(b)     to formulate the claim properly; or
(c)     to determine against whom the claim lies,
the Court may exercise the investigative powers conferred by this rule in anticipation of an action.
(2)The Court may, if satisfied that a person may be in possession of evidentiary material relevant to the possible cause of action, make an order imposing one or more of the following requirements –
(a)to disclose to the Court or to the plaintiff whether the person is or has been in possession of relevant evidentiary material and, if so, to disclose full particulars of relevant evidentiary material that is, or had been, in the person’s possession;
(b)if the person is in possession of relevant evidentiary material, to produce it to the Court or to the plaintiff;
(c)to verify the person’s response to the order by affidavit.
This Rule is to be construed against the object of the Rules as stated in Rule 3, inter alia, to avoid necessary delay, promote efficiency and to minimise costs. The plaintiff has indicated that she intends to bring another action in this Court against the defendant seeking damages for defamation. Whether the orders now sought are to be made in large part is to be judged on how they will affect and facilitate the proper conduct of this subsequent action in accordance with the objects in Rule 3. While it is highly likely that much, if not all, of the documents now sought by the plaintiff in this application will ultimately be produced through the interlocutory procedures in the subsequent action, or possibly as late as during its trial, it may be that the delay, cost and inconvenience caused to that action by the documents not being available to the plaintiff at its outset will make it in the interests of justice that orders now be made under R 32 insofar as that Rule enables them to be made.
Threshold Issues.
No order can be made under R 32 unless under its subr (1) the Court is first satisfied that the plaintiff may have a good cause of action and requires further information to satisfy any of subparagraphs (a), (b) and (c) as quoted above. Here the plaintiff relies on a combination of those subparagraphs. “May” in subr (1) only requires for establishing the threshold under subr (1) that there is a possibility that is more than baseless speculation, conjecture or suspicion: Belcar Pty Ltd v Premier Automotive Group Australia Pty Ltd (2007) 249 LSJS 403 at [50]. The plaintiff needs to show she has an arguable case: Hood Sweeney Technology Pty Ltd v Equant Australia Pty Ltd, Withers M, 23 September 2009, Judgment No [2009] SASC 298. The plaintiff seeks disclosure of documents relating to who supplied the photos and information appearing in the article to the defendant for the purpose of ascertaining whether she has a cause of action in defamation against such persons and the material with which to formulate any such claim. The defendant points out that much of the material in the article and the photographs is not in itself defamatory, and it may well be that what was said by individual informants, or contained in the photographs, would not provide an arguable case in defamation without the material being also linked to other material from an independent source and/or editorial comments. However, on the evidence it is equally possible that all the material necessary for a cause of action in defamation came from a single source. If there were multiple independent sources of the information and the pictures, it may make the defendant’s contention more likely, but it has not provided evidence that it had such multiple sources. It could have done this without disclosing who they were or what they contained. Accordingly, I consider it more than baseless speculation and conjecture that the defendant may have had a source which published material defamatory of the plaintiff to it and that the plaintiff has satisfied the threshold on this ground.
I do not find that the plaintiff has satisfied the threshold for any disclosure of documents under subr (1)(b) for it to formulate properly its claim against the defendant. Any claim of the plaintiff to aggravated damages is based on hurt suffered by her as a result of the defamatory publication: Andrews v Fairfax [1980] 2 NSWLR 225. Insofar as any ascertainment by her of the defendant’s sources for its publication might cause her “additional hurt” which could be the subject of pleading, that is not a formulation of her claim, but the establishment of an additional particular of it.
I also reject the plaintiff’s claim for disclosure of documents to identify the source of the defamatory material on the ground that she is entitled as part of her action to “nail the liar”. While is it part of the function of a successful defamation claim to vindicate the plaintiff’s reputation and “to nail the lie” there is no authority to show that it extends to obtaining a judgment against the ultimate source of the defamatory material as distinct from subsequent publishers. There is no evidence of any real danger of a further publication by any source of the defendant’s publication. There is no basis to include this in a properly formulated pleading of the plaintiff’s claim.
The plaintiff also seeks disclosure of the documents to ascertain whether she has a cause of action against any source of the defendant for misleading or deceptive conduct under the Commonwealth Trade Practices Act 1974. The matters mentioned above concerning a claim in defamation against such sources also apply to this claim and I will not repeat them. To be actionable under the Trade Practices Act the representations must have been made “in trade or commerce”. On the evidence it is possible that the defendant may have bought the pictures and/or text of the article from paparazzi or the like. It is also possible that it obtained the material other than in trade or commerce. Again it knows how it obtained it, but it has not deposed to any facts which would show that it was not in trade or commerce. Thus the inference that there may be a cause of action under s 52 by the plaintiff is more than mere speculation and hope, and the threshold is satisfied.
I do not consider that the plaintiff has satisfied a threshold for any disclosure of documents in respect of a claim against the defendant under s 52 on the basis that the defendant had an apparent defence to any such claim under s 65A of the Trade Practices Act.
The plaintiff also seeks disclosure of documents about the defendant’s sources to ascertain whether she may have a cause of action in the tort of injurious falsehood and to be able to formulate any such claim. The plaintiff has a reasonably arguable case for the elements of this tort of false statements by the defendant concerning her and that it has caused her some economic loss. It is also necessary for her to show that the defendant acted out of malice in making it. The plaintiff points to the possibility that the informants quoted in the article were fictitious and that the parts of it which were injurious to her were a fabrication by the defendant. The plaintiff points to the erroneous identification of “Minder Mark” in the article. While the defendant claimed in its corrections on 11 and 18 April that it had made a mistake about the identity of “Minder Mark” it has not deposed to this having been an innocent mistake. The plaintiff submits that it could well be a deliberate fabrication, and likewise much of the other material in the article. If there was such a deliberate fabrication, there is a reasonable inference that its purpose was to injure the plaintiff which would constitute the necessary malice: Roberts v Bass (2002) 212 CLR 1 at [76]. As the defendant has not deposed that it did have independent sources for the alleged injurious statements I find that the plaintiff has satisfied the threshold for disclosure for a cause of action in injurious falsehood.
Discretionary factors.
In respect of the matters for which the plaintiff has satisfied subr 32(1) it is now necessary to consider under subr 32(2) whether any, and if so what, order should be made.
Unlike some other applications under R 32 this is not a case where it is uncertain whether there will be any substantive litigation between the parties. The plaintiff will be suing the defendant in defamation. Depending on any disclosure to be made she may also join additional defendants, being the sources of the defendant’s photographs and information and pleading additional causes of action under s 52 of the Trade Practices Act and the tort of injurious falsehood. As mentioned above, the Court must weigh the advantages of all the defendants and all the causes of action being joined in the initial summons and statement of claim for the substantive relief against the costs, delay and inconvenience which would be likely if there were to be additional defendants and causes of action added part way through, and even late in, the progress of the case. While it far from certain that if the disclosure sought is ordered it will result in additional defendants and/or causes of action, there is a sufficient possibility of it to make a significant discretionary factor in favour of disclosure being ordered so as to expedite the new action.
While the causes of action under the Trade Practices Act and in injurious falsehood do not have any great prospect of increasing the amount of the damages recoverable by the plaintiff in defamation some different considerations apply in respect of them. It would not seem to be oppressive for the plaintiff to be allowed to pursue them in the alternative.
The defendant submitted that the plaintiff had an effective remedy for her cause of action in defamation against the defendant without her needing to pursue any additional cause of action in the alternative against any other defendant. I do not accept this. There is no evidence as to the ability of the defendant to meet any judgment which may be given against it or as to whether it is insured against such liability. Usually a plaintiff is permitted to pursue joint judgments against several defendants in case there are problems in the recovery of the judgment from any particular defendant.
The defendant submitted that the equivalent of the “newspaper rule” should be applied to refuse an order that it disclose the sources of its information and the information which it had received. In defamation cases (which as yet this case is not) there is a rule of practice that the media are not required to disclose their sources of information unless such disclosure is necessary in the interests of justice: John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 354-5. Although the rule is not directly applicable in an action for pre action disclosure, the Court will exercise its discretion under R 32 in accordance with the ‘newspaper rule”: State Bank of SA v Hellaby (1992) 59 SASR 304 at 313.
The “newspaper rule” has not been applied where newspapers have obtained their information from other than external sources: Kerrisk v North Queensland Newspapers Co Ltd [1992] 2 Qd R 398 at 403; South Suburban Co-operative Society v Orum [1937] 2 KB 690 at 703-5; British Steel Corporation v Granada Television Ltd [1981] AC 1096 at 1198-9.
Here there is no evidence that the defendant had any source which needs to be protected. The article claimed to quote from various unidentified sources. As there is an instance already in the article of a false identification of “Minder Mark” there is some possibility that there were no sources outside of the defendant for the information contained in the article. Thus, if the order is made, it could produce a response that there are no such documents. I am not prepared to infer there are such sources. Thus there is no basis on any analogy of the “newspaper rule” to refuse the order sought.
If the defendant did have sources for its information to which the “newspaper rule” could apply, it is necessary to consider whether it is in the public interest for the free flow of information that the rule should be applied in the circumstances of this matter as disclosed by the evidence. One distinct possibility is that the defendant was supplied with the photographs, and all or some of the information appearing in the article, by paparazzi who surreptitiously took the photographs and sold them to the defendant. I am not aware of any authority on the application of the “newspaper rule” to paparazzi, but it seems contrary to the rationale of that rule that persons who conduct themselves in such ways for commercial gain should be able to escape the legal consequences of their actions if they have made defamatory publications, deceptive or misleading misrepresentations or acts of injurious falsehood. The defendant has not shown that its sources were not such paparazzi. It is also a relevant consideration on the application of the “newspaper rule” whether the informants would expect that their identities would be kept confidential. The defendant has not put forward any evidence about any such expectation of confidentiality. I decline to apply any equivalent of the “newspaper rule” to here refuse an order under R 32.
Orders to be made.
I accept the submissions of the defendant that the terms of the order sought in the application are far too wide. Nothing was said to justify orders in terms of 1.1.2 and 1.1.3. It is not for the Court to re-draft what is an “ambit” claim into proper terms: Wildbore v Amatek (1998) 199 LSJS 49. I will adjourn the matter for the plaintiff to bring in minutes of order in accordance with these reasons.