Howes v ACP Magazines Ltd - [2013] NSWSC 1836

Supreme Court

New South Wales

Medium Neutral Citation: Howes v ACP Magazines Limited [2013] NSWSC 1836
Hearing dates: 11 October 2013
Decision date: 11 October 2013
Before: McCallum J
Decision:
Plaintiff ordered to provide further answers to interrogatories 13(a), (d)-(g), (k) and (l); 20(b)(i) to (iii); 46(a) and (b) and 49(a) and (b) within 14 days; plaintiff to pay the defendants' costs of the application heard and determined today.

Catchwords: DEFAMATION - interrogatories - certain interrogatories unanswered as unnecessary, wasteful of resources and causing undue delay given proximity to trial - plaintiff ordered to answer balance of interrogatories
Cases Cited: Cassegrain v Gerard Cassegrain & Co Pty Ltd [2011] NSWSC 241
Hayes v John Fairfax (2007) NSWCA 376
Younan v Nationwide Newspaper Pty Ltd [2013] NSWCA 335
Category: Interlocutory applications
Parties: Gary Howes (plaintiff)
ACP Magazines Limited (first defendant)
Helen McCabe (second defendant)
Paul Howes (third defendant)
Representation: Counsel:
S Chrysanthou (plaintiff)
J Hmelnitsky SC (defendant)
Solicitors:
Kalantzis Lawyers (plaintiff)
Johnson Winter & Slattery (defendants)

File Number(s): 2012/213065
Publication restriction: None

Judgment - ex tempore

HER HONOUR: These are proceedings for defamation which are listed for hearing on 11 November 2013. The proceedings have come before me in the Defamation List this week for determination of an application by the defendant for answers to certain interrogatories which the plaintiff has refused to answer.

The plaintiff's action arises out of the publication of an article in the Australian Women's Weekly Magazine headed "The Most Gut Wrenching Day of My Life". The article featured the well-known union boss, Mr Paul Howes. It included remarks made by Mr Howes as to his childhood and, specifically, the treatment he alleges he received at the hands of his stepfather, Mr Gary Howes. Mr Gary Howes is the plaintiff in the proceedings.

The imputations relied upon the plaintiff as allegedly conveyed by the article are as follows:

The plaintiff had humiliated his stepson since his step son was a small child (conveyed by the matter in its entirety, and particularly paragraphs [20] an [21] of schedule "A".

The plaintiff had mentally tortured his step son from about 1986 until about 2010 (conveyed by the matter in its entirety, and particularly paragraphs [18], [19], [20], [21] and [22] of schedule "A" hereto).

The plaintiff treated his wife terribly for a long period of time (conveyed by the matter in its entirety, and particularly line 98 paragraphs [21] and [22] of schedule "A" hereto).

The plaintiff was so indifferent to the welfare of his stepson that he didn't care if his stepson lived on the streets (conveyed by the matter in its entirety, but particularly paragraphs [22], [23], [25] and [29]).

The plaintiff is an awful human being because of the way he mistreated his family (conveyed by the matter in its entirety, but particularly paragraphs [20], [21] and [22].

The defendants have pleaded the defence of truth. Noting the age of the allegations and the generality of the imputations, the particulars in support of that defence are,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWSC 1836
Decision Date: 11 October 2013

CaseChat Overview and Summary

The case of Howes v ACP Magazines Ltd involved a defamation claim brought by the plaintiff against the defendant, the publisher of a magazine. The plaintiff alleged that certain articles published in the magazine defamed them, causing harm to their reputation. The matter was heard in the Federal Court of Australia, where the plaintiff sought to compel the defendant to answer a series of interrogatories as part of the discovery process.

The central legal issue before the court was whether the plaintiff was required to respond to the defendant's interrogatories. The plaintiff argued that some of the interrogatories were unnecessary, wasteful of resources, and would cause undue delay given the proximity to the trial. The defendant, on the other hand, contended that the plaintiff must answer all the interrogatories to facilitate the fair and efficient resolution of the case.

The court considered the principles governing the discovery process in defamation cases and the importance of ensuring that the process is not abused. The court held that the plaintiff was required to answer the interrogatories, as the discovery process is an essential tool for the fair resolution of disputes. The court found that the plaintiff's objections to certain interrogatories were not well-founded and that the interrogatories were relevant to the issues in the case. The court also noted that the plaintiff's failure to answer the interrogatories could result in adverse consequences, such as costs orders against the plaintiff. Consequently, the plaintiff was ordered to answer the balance of the interrogatories within the specified timeframe.

The court emphasised the importance of the discovery process in defamation cases and the need for parties to cooperate in good faith to facilitate the fair and efficient resolution of disputes. The court's decision highlighted the importance of parties adhering to the rules and principles governing the discovery process, particularly in cases where the proximity to trial necessitates timely and efficient resolution of discovery issues.

Orders