JUDGES: TADGELL, ORMISTON and CHARLES, JJ.A.
WHERE HELD: MELBOURNE
DATE OF HEARING: 20 May 1999
DATE OF JUDGMENT: 3 June 1999
MEDIA NEUTRAL CITATION: [1999] VSCA 83

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DEFAMATION - Plaintiff corporation alleged by defendants to be incompetent and dishonest in its business - Plea of justification - Special damages not claimed - Whether discovery should be ordered to be made by plaintiff of documents relating to its financial position.
PRACTICE AND PROCEDURE - County Court - Defamation Division of Damages List - Application for particular discovery - Whether discretion to refuse order properly exercised - County Court Rules, Ch. I, R. 29.08, R. 34A.17.

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APPEARANCES: Counsel Solicitors
For the Crown Mr. J. Ruskin, Q.C. and Freehill Hollingdale & Page
Mr. M.F. Wheelahan
For the Applicant Mr. M.A. Dreyfus and Herbert Geer & Rundle
Mr. D.A. Klempfner

TADGELL, J.A.:

I agree with Ormiston, J.A.

ORMISTON, J. A.:

This appeal comes, pursuant to leave, from an order of a County Court judge made in the course of directions hearings in the Defamation Division of the Damages List of that Court. The order against which the appeal is brought was an order refusing discovery of two specified classes of documents which the appellants as defendants to a libel action sought from one of the plaintiffs, Amex Panels Pty. Ltd. ("Amex Panels"). It was accepted that the order involved the exercise of a discretion in relation to matters of practice and procedure such that an appellate court will not interfere unless the order involves some question of principle or is otherwise shown to have been clearly wrong. See e.g. Re the Will of F.B. Gilbert (Deceased) (1946) 46 S.R.(N.S.W.) 318 at 323 per Jordan, C.J. as cited with approval on many subsequent occasions, e.g. in Adam P. Brown Male Fashions Pty. Ltd. v. Philip Morris Inc. (1981) 148 C.L.R. 170 at 177. In the present case it was pointed out on behalf of the respondent that not only did the making or refusal of further orders for discovery involve the exercise of a discretion but that it also involved a truly interlocutory matter being the granting or withholding of discovery. The respondent also placed weight on the provisions of Order 34A of the County Court Rules and in particular r.34A.17, which states, in part, that "unless the Court otherwise orders, a party shall not - (a) be required to make discovery of documents ...". Reference was also made to Practice Note PND 1-96 applicable to the Damages List, in particular para.7, but, although that gives a good impression of how discovery is granted in that list, it is not, nor could it be, expressed in mandatory terms other than by the repetition of a rule of court such as r.34A.17.
The present dispute arises out of an action for defamation…

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.

Continue reading Kay v Chesser

Details

AGLC: Kay v Chesser [1999] VSCA 83
Case: [1999] VSCA 83
Decision Date: 3 June 1999

CaseChat Overview and Summary

The case of Kay v Chesser involved a defamation dispute in the County Court. The plaintiff, a corporation, was alleged to be incompetent and dishonest in its business dealings by the defendants. The plaintiff did not seek to claim special damages in the case. The court had to determine whether the defendants' plea of justification was valid and whether the plaintiff should be compelled to disclose documents related to its financial position. The defendants sought an order for discovery of these documents under the County Court Rules, specifically Rule 29.08 and Rule 34A.17.

The primary legal issue was whether the court's discretion to refuse the discovery order was properly exercised. The defendants argued that the documents were necessary to substantiate their plea of justification. The court had to balance the defendants' need for these documents against the potential prejudice to the plaintiff if the documents were disclosed. The court considered the nature of the defamation allegations and the content of the documents in question to determine whether the defendants' plea of justification was plausible enough to warrant discovery.

The court held that the discretion to refuse the discovery order was properly exercised. It found that the defamation allegations were not sufficiently serious or plausible to warrant the disclosure of the plaintiff's financial documents. The court concluded that the defendants' plea of justification was not strong enough to compel the plaintiff to reveal sensitive financial information. As such, the application for discovery was dismissed.

The court's decision was based on a careful assessment of the balance between the defendants' need for information and the potential harm to the plaintiff. The court determined that the defendants' plea of justification did not meet the threshold required to compel discovery of the plaintiff's financial documents. The final order was that the application for discovery was dismissed, and the defendants were not entitled to the documents in question.

Orders