Hodder v Queensland Newspapers Pty Ltd

[1993] QCA 43

IN THE COURT OF APPEAL	[1993] QCA 043
SUPREME COURT OF QUEENSLAND

Appeal No. 169 of 1993

Brisbane

[Hodder v. Queensland Newspapers Pty. Ltd.]

BETWEEN

ERROL RAYMOND HODDER

(Plaintiff) Respondent

- and -

QUEENSLAND NEWSPAPERS PTY. LTD.

(Defendant) Appellant

The President
Mr Justice Davies

Mr Justice Byrne

Judgment delivered 19/03/1993

SET ASIDE ORDER OF THIS COURT MADE ON 10 MARCH 1993. IN LIEU

THEREOF ORDER THAT:

1. APPEAL ALLOWED.

2.    ORDER DATED 10 JULY 1992 SET ASIDE ONLY INSOFAR AS IT REQUIRED APPELANT TO ANSWER INTERROGATORIES 1(a), 2, 3(a), 4(a), 6(a), (b), (c) and (d) and 10(b) and (c).

3.   APPELLANT TO PAY TAXED COSTS OF AND INCIDENTIAL TO APPEAL.

CATCHWORDS:	DEFAMATION - Actions for defamation - Interrogatories - "newspaper rule" - whether special circumstances.
Counsel:	C.E.K. Hampson Q.C. with him P.D.T. Applegarth for the appellant R.A. Mulholland Q.C. with him D.K. Boddice for the respondent
Solicitors:	Messrs. Thynne and Macartney for the appellant Messrs. McInnes Wilson and Jensen for the respondent
Hearing Date(s):	8 February 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 169 of 1993

Brisbane

[Hodder v. Queensland Newspapers Pty. Ltd.]

BETWEEN

ERROL RAYMOND HODDER

(Plaintiff) Respondent

- and -

QUEENSLAND NEWSPAPERS PTY. LTD.

(Defendant) Appellant

The President
Mr Justice Davies

Mr Justice Byrne

Judgment delivered 10/03/1993

Reasons for judgment by the President separately, Byrne J. and Davies JA jointly. Davies JA and Byrne J. agreeing in the orders proposed by the President.

APPEAL ALLOWED. ORDER BELOW SET ASIDE. RESPONDENT TO PAY TAXED COSTS OF APPEAL AND THE PROCEEDINGS BEFORE THE JUDGE AT FIRST INSTANCE TO BE TAXED.

CATCHWORDS:	DEFAMATION - Actions for defamation - Interrogatories - "newspaper rule" - whether special circumstances.
Counsel:	C.E.K. Hampson Q.C. with him P.D.T. Applegarth for the appellant R.A. Mulholland Q.C. with him D.K. Boddice for the respondent
Solicitors:	Messrs. Thynne and Macartney for the appellant Messrs. McInnes Wilson and Jensen for the respondent
Hearing Date(s):	8 February 1993

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 169 of 1993

Brisbane

Before The President
Mr Justice Davies
Mr Justice Byrne

[Hodder v. Queensland Newspapers Pty. Ltd.]

BETWEEN

ERROL RAYMOND HODDER

(Plaintiff) Respondent

- and -

QUEENSLAND NEWSPAPERS PTY. LTD.

(Defendant) Appellant

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 10/03/1993

This is an appeal from an order made in the District Court on 10 July, 1992, that the appellant answer a number of interrogatories in an action for defamation brought by the respondent against the appellant with respect to a publication in the appellant's newspaper, "The Sunday Mail", on 2 July, 1989. The respondent was, at the time, a senior official in the Australian Workers' Union.

The article, as set out in the respondent's pleading, related a number of opinions to officials of the Queensland Branch of the Union and referred to "union members" who were "opponents" of the respondent and "anti-Hodder documents ... circulated within the AWU ...". Some of what was stated was expressly attributed by the article to "A.W.U. sources". Further, some parts of the article appear to be based on information which would only have been available to officials of the union. Complaint is made in the respondent's pleading that the appellant acted in "contumelious disregard" of the respondent's rights for a number of reasons, including the appellant's failure to name the respondent's "opponents" with the consequence that the respondent is "unable to identify the special interest or animus that such `opponents' might have or have towards him". Exemplary damages are claimed although it is not until the respondent's Reply that an assertion is implicitly made that the alleged defamatory contents of the article are false.

In its Defence, the appellant has pleaded a number of statutory defences, including those under sub-sections (3) and (5) of section 377 of the Criminal Code. The material paragraphs of the Defence, paragraphs 5 and 6, are in the following terms:

"5. Further and in the alternative, if the article was defamatory of the Plaintiff (which is denied) then it was published in good faith for the public good.

6. Further and in the alternative, if the article was defamatory of the Plaintiff (which is denied) then it was published in good faith for the purpose of giving information to the readers of The Sunday Mail with respect to a subject, namely the affairs of the Australian Workers' Union, as to which those persons had or were believed on reasonable grounds by the Defendant to have such an interest in knowing the truth as to make the Defendant's conduct in making the publication reasonable under the circumstances."

Particulars subsequently given in relation to paragraph 6 are in the following terms:

"...

2. With respect to Paragraph 6 of the Defence, the reasonable grounds on which the Defendant believed that the readers of "The Sunday Mail" had an interest in knowing the truth with respect to the affairs of the Australian Workers' Union are that:

(a)  The Australian Workers' Union is a prominent Union with considerable power and influence with respect to the conduct of industrial relations and the affairs of the Australian Labor Party (Queensland Branch);

(b)  The readers of "The Sunday Mail" have a legitimate interest in the conduct of industrial relations and the affairs of the Australian Labour Party (Queensland Branch)."

The respondent's Reply denies that the publication was made in good faith in that:

"(a) the publication was made maliciously

PARTICULARS

(i)  the Defendant did not seek nor did it obtain from the Plaintiff his views or explanations of the material sought to be published;

(ii) the Defendant wrote and published the matter in

extravagant and exaggerated language

(iii) the Defendant did not make any reference to fact relevant to the matters published, namely, that whilst the Plaintiff held office the assets of the Australian Workers' Union in Queensland increased by not less than $7,000.000.00.

(b)  The Defendant, through its servant Sandra MacLean, knew that the material in the article was untrue or did not care whether such material was true or false.

(c)  The manner and extent of the publication exceeded that which was reasonably sufficient."

It is unnecessary to set out the disputed interrogatories or the answers or objections in detail. The interrogatories ask (a) the identities of the persons from whom the appellant obtained various documents of which it made discovery and of the "officials", "AWU sources" and "Mr Hodder's opponents" referred to in the article, and (b) whether, through its servants or agents, the appellant had "conversations with persons concerning the `information' alleged [in paragraph 6 of the Defence] to be given to the readers of the Sunday Mail in the article before the article was published for the purpose of obtaining facts or opinions or both with respect to the alleged `information'" and, if so:

"(b) who did those servants or agents (identifying them) speak to with respect to the "information" in the article before it was published.

(c)  what facts or opinions were obtained and from whom were they obtained."

The matter has been argued before the Court on the basis that the "newspaper rule" is material in relation to the disputed interrogatories. No attempt was made to suggest that the rule is inappropriate to some of the interrogatories or that there might be some other ground of objection, and no application was made by the respondent for leave to deliver a further set of interrogatories if the appeal succeeds.

In Wran v. Australian Broadcasting Commission (1984) 3

NSWLR 241, Hunt J. discussed the "newspaper rule" at pp.250-

253. At pp.252-253, his Honour said:
"An examination of the many cases which recognize the
existence of the newspaper rule supports the following
propositions:
(1) It is the identity of the informant, not the
information which he gave, which (notwithstanding its
relevance) is protected from disclosure by the news media
defendant: Hope v. Brash (at 191, 192); Plymouth Mutual
Co-operative and Industrial Society Ltd. v. Traders'
Publishing Association Ltd. (at 414, 415, 418); Adam v.
Fisher (at 288); Lyle-Samuel v. Odhams Ltd. (at 141, 144-
146); South Suburban Co-operative Society Ltd. v. Orum (at
699, 700, 701, 703, 704); Lawson and Harrison v. Odhams
Press Ltd. [1949] 1 KB 129 at 134, 135.
(2) The information obtained must be disclosed where a
defence of qualified privilege is pleaded, notwithstanding
that the newspaper rule protects the source of that
information from disclosure: Plymouth Mutual Co-operative
v. Traders' Publishing Association Ltd. (at 412, 413,
418); Lyle-Samuel v. Odhams Ltd. (at 143); South Suburban
Co-operative Ltd v. Orum (at 701-703, 704); Georgius v.
Oxford University Press (Delegates) [1949] 1 KB 729 at
732; Broadcasting Corporation of New Zealand v. Alex
Harvey Industries Ltd. (at 169, 175, 180).
(3) The information will, however, be protected from
disclosure where (but only where) its disclosure would
also disclose the identity of the informant: Hennesy v.
Wright (No.2) (at 449); Hope v. Brash (at 191, 192);
Broadcasting Corporation of New Zealand v. Alex Harvey
Industries Ltd. (at 175).
(4) The protection against disclosure exists only prior
to the hearing of the action; it does not exist at the
trial: McGuinnes v. Attorney-General of Victoria (at 85,
86, 87, 92, 102-105, 106); Attorney-General v. Clough (at
789, 790); Attorney-General v. Mulholland (at 491, 492);
Re Buchanan (1964) 65 SR (NSW) 9 at 11; 82 WN (Pt 2) 83 at
85; Broadcasting Corporation of New Zealand v. Alex Harvey
Industries Ltd. (at 166, 171); British Steel Corporation
v. Granada Television Ltd. [1981] AC 1096 at 197, 1198."

Both parties' submissions accepted that these propositions
accurately reflect the general rule but the respondent contends
that it is subject to qualification. The central issues
between the parties concerned the existence and nature of that
qualification and its application in the circumstances of the
present case.
Despite the criticism to which it has been exposed and the doubts expressed concerning its origins, the newspaper rule continues to form part of the law in this State. Further, it has practical purpose. Differences in practice and procedure in defamation actions which may seem anomalous are at least partially explicable by reference to the need to balance the effective administration of justice with other public interests including freedom of speech and the public's right to information. The balance struck in relation to disclosure of media sources of information entitles a person alleging defamation to ascertain the details at trial (unless the media outlet accepts the practical disadvantages associated with limitations upon the evidence which it may otherwise call), but generally does not require disclosure before trial when litigation can be abandoned after the sources have been disclosed. One consequence may be to give publishers tactical advantages over those defamed and another may be to make defamation litigation more risky, expensive and difficult to settle, but these disadvantages have been accepted as the price of the freer flow of information to the public.
It is equally clear that the general rule is subject to
qualification. So much has been recognized for over a hundred
years (Hennessy v. Wright (No.2) (1888) reported as a note to
Parnell v. Walter (1890) 24 QBD
441, 445, 449) although there are few reported cases in which
special circumstances have been found to exist. The rule is a
rule of practice and, as such, it is broadly accurate to
describe it as indicating the manner in which the court's
discretion is ordinarily exercised subject to special
circumstances in a particular case: John Fairfax and Sons Ltd.
v. Cojuangco (1988) 165 CLR 346. Special circumstances were
found to exist in Thiess v. TCN Channel Nine Pty. Ltd. (No.1)
(1991) 2 Qd.R. 715 and Kerrisk v. The North Queensland
Newspaper Co. Ltd. (1992) 2 Qd.R. 398. More generally, it is
sufficient special circumstance to exclude the operation of the
rule that it is necessary to do so in order to do justice
between the parties to a dispute: Cojuangco. It was there
suggested (p.358) that the seriousness of the defamation and
the identification of the source "in a general way" and
reliance on that source "to point up the authenticity of the
imputations" might be material factors.

The respondent relies upon the reference to "AWU sources" in the article, but its basic submission is that it is necessary in the interests of justice that it be informed of the identity of the appellant's sources at this time because otherwise it will be unable to prove absence of good faith at the trial and the appellant may succeed on its statutory defences without being obliged to call evidence. In support of this contention, an affidavit sworn by the respondent's solicitor contains the following statement:

" In order for the Plaintiff ... to be able to properly prepare his case it is necessary, at this stage of the proceedings, particularly for the Plaintiff to discharge his onus of establishing the allegation of an absence of good faith, to know all or any of the source or sources of the Defendant's information."

Objection was taken to this evidence but, whether or not it is admissible, it is of little weight. Apart from its generality, it is plain from the documents discovered by the appellant and the form of the interrogatories that the respondent is aware of at least some of the documentary
sources of the appellant's information. Further, paragraph 2(b) of the Reply is scarcely compatible with an assertion that the respondent has no knowledge concerning the sources of the appellant's information.
The primary judge considered that the decision in Cojuangco "signals an important change in the way in which the discretion should be exercised in certain sorts of cases" and that Thiess and Kerrisk "can also be seen as application of a greater readiness to allow discovery at an interlocutory stage". He continued:

"The facts of the present case closely resemble those before the Full Court of Queensland in Goding. That is, the article complained of here relies upon unidentified sources within the A.W.U. The defence raises issues of qualified privilege, while the plaintiff's reply denies the factual basis of the pleas of qualified privilege, and asserts that the publication was made maliciously.

Mr. Hodder has an interest, at this stage of the proceedings, in knowing the identity of the newspaper sources. That interest is partly caused by the burden of proof in actions such as this - it is tactically desirable to be fully informed before the trial starts. So much was asserted in Goding, and interrogatories directed to the journalist's sources were not allowed. But that was long before the Cojuangco decision, and it is my opinion that such a case should now be decided differently.

The appropriate exercise of discretion in this case is made by compelling the newspaper to answer interrogatories directed towards the identification of its sources. ..."

In my opinion, his Honour erred in the approach which he adopted and his discretion miscarried. Cojuangco laid down no new principle. The remarks there, which were obiter, merely accepted what has been long recognized, namely, that the rule is subject to qualification and disclosure may be required if special circumstances justify an interlocutory order that sources be disclosed. It is therefore necessary for this Court to exercise the discretion afresh.

I am not satisfied that disclosure of the appellant's sources is necessary at this time in the interests of justice or that other special circumstances exist which require the appellant to answer the interrogatories prior to trial. It is instructive to refer to the Report of the Committee on the Law of Defamation chaired by Lord Porter which led to the introduction in England in 1949 of R.S.C. O.82 r.6 (formerly O.31 r.1A). Paragraphs 184-187 of that Report are in the following terms:

"184. The grounds upon which the Elliot and Garrett Interrogatories are permitted are that where a defamatory statement is published on a privileged occasion, the defence of "qualified privilege" is liable to be defeated by malice on the part of the defendant. The absence on the part of the defendant of a bona fide belief in the truth of the statements which he made constitutes malice: and a relevant method of testing his bona fides is to ascertain whether he made, in advance, proper inquiries to verify the truth of his statements. He may have done so; but he may, on the other hand, have contented himself by repeating irresponsible gossip without caring whether it were true or false.

185. The questions put in the Elliot and Garrett Interrogatories are thus relevant to the issue of malice where privilege is pleaded and could properly be put to the defendant in cross-examination if the action reached the stage at which the defendant was compelled to go into the witness box. But the onus of proof of malice lies upon the plaintiff. Consequently, unless some evidence of malice has been given before the close of the plaintiff's case, the defendant is entitled to judgment and no occasion arises for him to go into the witness box at all.

186. If the Elliott and Garrett Interrogatories were disallowed, there might occasionally be cases where a plaintiff would fail, although if the facts as to the inquiries made by the defendant had been elicited in advance by interrogatories and put in evidence before the jury as part of the plaintiff's case, the jury would have found that the defendant was actuated by malice and thus not entitled to succeed upon his defence of privilege. But although such cases might exist, we are satisfied that they would be very rare. In practice, although the Elliott and Garrett Interrogatories are administered almost as a matter of course in most libel actions where privilege is pleaded, it is very seldom indeed that the answers are put in evidence. If the defendant was in fact actuated by malice, there is almost invariably sufficient evidence of this to enable the plaintiff to establish a prima facie case of malice without the assistance of the interrogatories; and the only use, if any, which is made of the answers to the Elliot and Garrett Interrogatories is to assist in the cross-examination of the defendant - which is not a legitimate purpose for which interrogatories should be administered.

187. The administration of these interrogatories, and, more particularly, the preparation of the answers, adds considerably to the costs of actions for defamation, and so imposes considerable hardship upon a large number of defendants. Having regard to the very small number of cases in which any appreciable harm would be done to a plaintiff by his inability to administer such interrogatories, we feel justified in recommending that the Elliott and Garrett Interrogatories should be abolished."

If circumstances change or if the trial judge thinks it necessary, further interrogatories may be permitted. However, at this time, insistence on disclosure of the appellant's sources is not warranted.

The appeal is allowed and the order below is set aside. The respondent must pay the taxed costs of the appeal and the proceedings before the judge at first instance to be taxed.

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 169 of 1993

BETWEEN:

ERROL RAYMOND HODDER

(Plaintiff) Respondent

- and -

QUEENSLAND NEWSPAPERS PTY LTD

(Defendant) Appellant

The President
Mr Justice Davies
Mr Justice Byrne

Joint judgment of Mr Justice Davies and Mr Justice Byrne delivered the 10th day of March 1993

CATCHWORDS:
Discovery - "newspaper rule" of practice - whether special
circumstances such as to require disclosure of source of
newspaper story concerning a matter of public interest -
disclosure refused at this stage for absence of proof that it

is now "necessary in the interests of justice".

Counsel:	C.E.K. Hampson Q.C. with P.D.T. Applegarth for appellant
R.A. Mulholland Q.C. with D.K. Boddice for respondent
Solicitors:	Thynne and Macartney for appellant McInnes Wilson and Jensen for respondent

Hearing date: 8 February 1993
THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 169 of 1993

Before the Court of Appeal

The President
Mr Justice Davies

Mr Justice Byrne

BETWEEN:

ERROL RAYMOND HODDER

(Plaintiff) Respondent

- and -

QUEENSLAND NEWSPAPERS PTY LTD

(Defendant) Appellant

JOINT JUDGMENT - DAVIES J.A. and BYRNE J.

Delivered the 10th day of March 1993

There is a public interest in the free flow of information on matters of general concern.1 An apprehension2 that exposing confidential sources prejudices that interest by diminishing the media's capacity to report crimes, official misconduct or other public dangers and abuses largely accounts for the "newspaper rule" of practice. But at times the public interest served by maintaining the anonymity of journalistic sources conflicts with the no less important public interest that "cases be tried by courts on the relevant and admissible evidence".3 Defamation litigation presents such an occasion where the motives, credibility or knowledge of the source matter to absence of good faith.4 In such circumstances, a court asked to compel disclosure of a source must resolve the dynamic tension between the competing public interests.

A measure of protection is accorded to the public interest in the free flow of information on matters of general concern by the recognition of a judicial discretion not to insist on disclosure. In general, in deciding whether to order disclosure, "the courts have acted according to the principle that disclosure of the source will not be required unless it is necessary in the interests of justice".5

With necessity in the interests of justice as the guiding criterion, mere relevance is not a sufficient justification for compelling disclosure. Some tenuous relationship between the issues and the source's identity cannot suffice to overreach the public interest advanced by preserving the anonymity of sources. Otherwise there will often be no protection of confidential sources from "unnecessary disclosure of their identity"6 where absence of good faith is raised.

The necessity touchstone has another implication. Where, as in this case, no urgency attaches to it, ordinarily disclosure should not be compelled unless there is no other reasonably practicable way of obtaining the name.7 Generally speaking, without this element there is no good reason for the public interest advanced by preserving the anonymity of sources to yield to a plaintiff's desire for the information.

The story has an evident public interest aspect: its topic
is culpable mismanagement by officials of a large trade union.
And the words of the article suggest that information it
conveys came from a confidential source.8 Maintenance of the

Journalists to Identify Their Sources: 'The Newspaper Rule' and 'Necessity'", (1991) 14 University of New South Wales Law Journal 302, 309. However, it is unnecessary to consider that question in this appeal.

6

Sir Owen Dixon in McGuiness v. Attorney-General (Victoria) (1940) 63 C.L.R. 73, 104-105, cited in Cojuangco at 355.

7

cf. Secretary of State for Defence v. Guardian Newspapers Ltd [1985] A.C. 339, 367; Wasylyshen v. Canadian Broadcasting Corporation (1989) 32 C.P.C. (2d) 237, 249, 257.

8

The appellant did not adduce evidence showing that the source had actually sought confidentiality. This failure was not relied on (although perhaps such an

source's anonymity therefore seems consistent with the public interest in the flow of information on matters of public concern.

Disclosure was ordered because the Judge thought the respondent "has an interest, at this stage of the proceedings," in learning the identity. "It is", said his Honour, "desirable to be fully informed before the trial starts". As a general proposition in the conduct of litigation, that is true. But there is a competing public interest to be acknowledged here.

Accordingly, convenience is not enough.

The only allegation to which the source's identity might be relevant is that the journalist knew that the allegedly defamatory material was untrue or else was indifferent to its accuracy: para. 2(b) of the reply. The contention that the publication was known to be untrue could hardly have been raised unless the respondent's lawyers were aware of facts tending to establish it. So the identity of the source, though probably relevant, may not really matter much. If, however, the identity might be important, there was no evidence indicating that the source could not be identified by other, not too troublesome, pre-trial investigations.

The respondent's solicitor's affidavit claimed it was "necessary" to know the source "to be able to properly prepare" the case. This was conclusory assertion, and inadmissible. Apart from the pleadings, there was no evidence touching the potential significance of the informant's identity. The pleadings do not show more than mere relevance in the identity; and, as we have said, there is nothing to demonstrate that there were no reasonably practicable, less intrusive means available to reveal the source.

The disclosure was not shown to be necessary in the interests of justice. Nor are there other special circumstances to require it now.

We agree in the orders proposed.

1

John Fairfax & Sons Ltd v. Cojuangco (1988) 165 C.L.R. 346; X Ltd v. Morgan-Grampian (Publishers) Ltd [1991] 1 A.C. 1, 40-41; In re Arya 589 N.E. 2d. 832, 834-835 (1992).

2

Different views have been expressed concerning the impact on the media's ability to obtain information caused by revealing sources: see Marketos v. American Employers Insurance Co. 460 N.W. 2d. 272, 277 (1990); "Developments in the Law - Privileged Communications" (1985) 98 Harvard Law Review 1450, 1605-1606; "Promises and the Press: First Amendment Limitations on News Source Recovery for Breach of a Confidentiality Agreement" (1989) 73 Minnesota Law Review 1553, 1563-1565; Dallas Morning News Co. v. Garcia 822 S.W. 2d. 675, 681-682 (1991).

3

Cojuangco at 354.

4

Kerrisk v. The North Queensland Newspaper Co. Ltd [1992] 2 Qd.R. 398; Desai v. Hersh 954 F. 2d. 1408, 1412 (1992).

5

Cojuangco at 354. Other special circumstances may justify disclosure. For example, sometimes there will not be a public interest to be advanced by withholding the source's identity. Kerrisk was such a case. And the strengths of the competing public interests may vary from case to case: X Ltd v. Morgan-Grampian at 44; British Steel Corporation v. Granada Television Ltd [1981] A.C. 1096, 1174; Mitchell v. Superior Court of Marin County 690 P. 2d. 625, 634 (1984). In cases where the public interest in the free flow of information is not strong, it may be easier for a plaintiff to obtain an order for disclosure: cf. I. Cram, "When the 'Interests of Justice' Outweigh Freedom of Expression", (1992) 55 Modern Law Review 400; but see S. Walker, "Compelling