Mallik v McGeown

[2008] NSWSC 129

CITATION:	Mallik v McGeown [2008] NSWSC 129
HEARING DATE(S):	18/02/2007; 19/02/2007
JUDGMENT DATE :	25 February 2008
JURISDICTION:	Common Law
JUDGMENT OF:	McCallum J
CATCHWORDS:	COMMON LAW - defamation - application to dispense with jury - answers to interrogatories - setting aside of subpoenas - overriding purpose
LEGISLATION CITED:	Civil Procedure Act 2005 Defamation Act 1974 Defamation Act 2005 District Court Act 1973 Supreme Court Act 1970 Uniform Civil Procedure Rules
CATEGORY:	Procedural and other rulings
CASES CITED:	A v Z [2007] NSWSC 899 Browne v Dunne (1893) 6 R 67 Clyne v NSW Bar Association [1960] 104 CLR 186 Mitchell v Tsiros (No.1) [1982] VR 191 Morgan v John Fairfax (1990) 20 NSWLR 511 Osenton & Co v Johnson [1942] AC 130 Peck v Email Ltd (1987) 8 NSWLR 430
PARTIES:	Robin Mallik (Plaintiff) William McGeown (1st Defendant) Hunter Valley Independant Newspaper Pty Ltd (2nd Defendant) Russel Hawkins (3rd Defendant)
FILE NUMBER(S):	SC 20254/06
COUNSEL:	Mr M Neil QC / Mr D Caspersonn (Plaintiff) Ms L Evans (1st & 2nd Defendants) Mr RR Stitt QC / Ms DV Robinson (3rd Defendant)
SOLICITORS:	Harris Wheeler Lawyers (Plaintiff) Beazley Singleton Lawyers (1st & 2nd Defendants) Philip Watson Pty Ltd (3rd Defendant)

- 14 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

25 February 2008

20254/06 Mallik v McGeown

JUDGMENT

1 HER HONOUR: These are proceedings for defamation arising out of the publication of two letters in two newspapers, the Kurri Kurri and Weston Independent and the Cessnock Independent. The second defendant is the publisher of those newspapers. The first defendant is the sole director of the second defendant. The third defendant is the author of one of the letters complained of.

2 The proceedings were listed for hearing commencing on 18 February 2008 but that date was vacated on the application of the first defendant on the grounds of his poor health.

3 There are now four applications before the Court:

1. The plaintiff seeks an order dispensing with any requirement for the proceedings to be heard before a jury.
2. The third defendant seeks an order that the plaintiff give specific and non-evasive verified answers to some of the interrogatories administered by the third defendant.
3. The third defendant moves to set aside three subpoenas issued by the plaintiff to third parties.
4. The third defendant moves to set aside a Notice to Produce issued by the plaintiff.

4 There was also an application by the plaintiff for an order requiring the third defendant to produce the original or any copy of the letter written by him, which is the second matter complained of. At the conclusion of the hearing, Mr Stitt of Queen’s Counsel, who appeared for the third defendant, produced that document (MFI 5).

Application to dispense with a jury

5 The material sued on was published in 2006, after the commencement of the Defamation Act 2005. Accordingly, the plaintiff’s application is governed by s 21 of that Act. Nr Neil of Queen’s Counsel, who appeared for the plaintiff, informed me that, so far as he has been able to ascertain, this is the first application to dispense with a jury made under that section.

6 Section 21 provides:

“21 Election for defamation proceedings to be tried by jury

(1) Unless the court orders otherwise, a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury.

(2) An election must be:

(a) made at the time and in the manner prescribed by the rules of court for the court in which the proceedings are to be tried, and

(b) accompanied by the fee (if any) prescribed by the regulations made under the Civil Procedure Act 2005 for the requisition of a jury in that court.

(3) Without limiting subsection (1), a court may order that defamation proceedings are not to be tried by jury if:

(a) the trial requires a prolonged examination of records, or

(b) the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury.”

7 By Notice of Intention filed 26 July 2006, the third defendant has made an election for the proceedings to be tried by jury in accordance with rule 29.2 of the Uniform Civil Procedure Rules. Ms Evans, who appeared as counsel for the first and second defendants, indicated that those defendants also wish to have the proceedings tried by jury. They have not made an election because the third defendant made his first.

8 It is necessary also to consider the terms of s 22 of the Act, which provides that, in defamation proceedings that are tried by jury, the jury is to determine the issues of publication, defamatory meaning and whether any defence raised has been established. The enactment of s 22 effected a substantial change in that respect. Under the Defamation Act 1974 as it was in force immediately before the commencement of the Defamation Act 2005, the role of the jury was confined to determining the issues of publication and defamatory meaning. All issues raised by the defences were decided by the judge.

9 The enactment of the Defamation Act 2005 followed lengthy consideration by the Standing Committee of Attorneys General. The report of that committee on the proposal for uniform defamation laws published in July 2004 summarised the competing policy considerations on whether to retain juries (citing an earlier report):

“Briefly, the main arguments in favour of juries are that judges are assumed to lose touch with the feelings and language of the ordinary person and that a jury selected from a cross-section of the community is more likely to arrive at a true appreciation of the facts in a defamation action. Issues at trial such as determination of imputations, the truth of a statement or the existence of a genuine opinion, are well within the competence of a jury.”

10 The report recommended that juries “may” determine if a publication is defamatory and whether the defendant has a defence and that judges should assess damages. That recommendation is reflected in ss 21 and 22.

11 The formulation in s 21(3)(b) “any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury” differs from previous formulations of the test in New South Wales for dispensing with a jury in defamation trials. Before the commencement of the Defamation Act 2005, the issue whether proceedings for defamation were to be tried with a jury was governed by s 86 of the Supreme Court Act 1970, which provided:

“86 Common law claim—defamation

(1) Proceedings on a common law claim in which there are issues of fact on a claim in respect of defamation are to be tried with a jury.

(2) Despite subsection (1), the Court may order that all or any issue of fact be tried without a jury if:

(a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury, or

(b) all parties consent to the order.”

12 Its predecessor, s 89 as it was in operation before 18 January 2002, also included the formulation “any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury”. Section 76B(2) of the District Court Act 1973 was in the same terms as s 86(2) of the Supreme Court Act.

13 Interestingly, when the Defamation Bill 2005 was read a second time and debated in the Legislative Assembly, the then Attorney-General Mr Bob Debus said of clause 21 that it would replace “similar provisions” in the District Court Act 1973 and the Supreme Court Act. Nothing in that debate sheds any further light on the kind of issue Parliament had in mind as being unsuitable to be tried by a jury.

14 Mr Neil submitted that the Court’s discretion under s 21(3) is broader than the discretion conferred under the earlier provisions in that it contemplates that there are issues other than technical and scientific issues that cannot be conveniently considered and resolved by a jury. I accept that submission, so far as it goes. However, there is no guidance in the statute as to what kind of other issue, apart from technical and scientific issues, might properly be considered incapable of being conveniently considered and resolved by a jury.

15 It is likely that Parliament intended the general words “or other issue” to be read as a continuation of the preceding specific words “technical” and “scientific” so that the phrase “or other issue” should be read down to embrace only issues of the same kind. However, having regard to the conclusion I have reached as to the nature of the issues raised in these proceedings, it is not necessary for me to decide that question. I am content to proceed on the basis of the broader test suggested by Mr Neil, that is, whether the issues are of undue difficulty.

16 The plaintiff submitted that a jury should be dispensed with for the following reasons, which were expanded in oral argument:

“(a) The matter involves listening to many hours of tapes of the Crossley proceedings and probable examination of lengthy written transcript of the proceedings.

(b) The defences involve serious allegations against a solicitor in the performance of his professional duties, which it is submitted should be resolved by a judge.

(c) There are complexities arising from the defences of comment and qualified privilege.

(d) The health of Mr McGeown, which is an important practical consideration.

(e) There is likely to be a considerable saving of time and resources.”

Issues of fact likely to arise in the proceedings

17 Before proceeding to consider those matters, it is necessary to consider the issues of fact likely to arise in the proceedings. There are three matters complained of. The first is described as an open letter to the State Member, Kerry Hickey. The third defendant is not sued on that publication. The only part that refers to the plaintiff is in the following terms:

“Why hasn’t the Council sacked its Solicitor (Mallik) for gross incompetence? Is it because he knows where all the skeletons are buried from the Colin Cowen Corp?”

18 The imputations relied upon in respect of that matter are:

“(a) That the plaintiff should be sacked as the solicitor for Cessnock Council because as the solicitor for the Council he has acted with gross incompetence.
(b) That the plaintiff intimidated Cessnock Council into retaining him as its solicitor because the plaintiff knows where all the skeletons are buried from the Colin Cowen Corporation.”

19 The plaintiff also sues on a letter written by the third defendant. The third defendant admits sending the letter to the first defendant but denies that he is responsible as a publisher in respect of its republication in the two papers (the second and third matters complained of). The letter states:

“Dear Bill
With regard to a certain solicitor suing you for defamation over a letter to the Editor which appeared in the last edition of the Kurri paper have you pointed out to him that if it’s the truth you printed even though its painful, it not (sic) defamation?
I have had a cause to complain to the Law Society about that Solicitor and am in the process of complaining again that he lied to a Magistrate.
If your readers following (sic) the case Council ran against me over a little black dog, I’m sure they would all agree with the sentiments of the letter that appeared in your Kurri paper.
Keep on reporting the facts
Regards
R.J. Hawkins”

20 The imputations complained of are;

“(a) That the plaintiff had lied to a Magistrate once.
(b) That the plaintiff had lied to a Magistrate again.
(c) That the conduct of the plaintiff as a solicitor was such as to warrant a complaint to the Law Society that he lied to a Magistrate once.
(d) That the conduct of the plaintiff as a solicitor was such as to warrant a complaint to the Law Society that he lied to a Magistrate again.”

21 The defendants have pleaded defences of qualified privilege at common law and pursuant to s 30 of the Defamation Act. The third defendant has pleaded reply to attack as a specific category of qualified privilege at common law. The defendants have also pleaded the defences of honest opinion, truth and unlikelihood of harm. The plaintiff has pleaded malice in reply.

22 The truth of the imputations is also put in issue by the plaintiff, who has pleaded his knowledge of their falsity as a matter going to his entitlement to aggravated damages. If that position is maintained at trial, it may be anticipated that the plaintiff will give evidence in his case going to the issues raised by the truth defences.

23 In support of the pleas of truth, the defendants have identified five separate instances when it is alleged the plaintiff made false statements to a Magistrate while appearing for Cessnock City Council in the prosecution of Jill Crossley for offences relating to an uncontrolled dog. Particulars of the truth defence indicate that the defendants rely on the whole of the transcript of those proceedings and, in particular, certain extracts. The whole of the certified transcript is 123 pages. The plaintiff has cut and paste the relevant extracts from a transcript prepared by him (which is not the certified transcript) and those extracts come to some 22 pages.

24 As to three of the alleged false statements relied on by the defendants, the issues raised are pure questions of past fact, namely, whether particular words were or were not said and whether particular events did or did not happen. They may also raise issues as to the meaning of words used, an issue very much within the province of jury wisdom. As to the other two, the issue is slightly more complex in that the false statement identified is a statement allegedly made by the plaintiff at the hearing to the effect that Ms Crossley and the third defendant had engaged in a criminal conspiracy to pervert the course of justice by falsely swearing that the third defendant (and not Ms Crossley) was the owner of the dog. That raises an issue as to whether what was said by the plaintiff amounted to a statement of fact or only a submission as to what the Magistrate could properly conclude from the evidence. However, that is also an issue as to the meaning of the words used. The defendants’ characterisation of the plaintiff’s conspiracy submission in the Crossley proceedings as a “false statement” also raises an issue as to the facts underlying the submission (if it was put).

25 Apart from the defences of truth, the defendants have pleaded defences of honest opinion and qualified privilege. Mr Neil drew my attention to the matters of public interest particularised by the defendants in support of those defences. He submitted that those particulars raise questions as to the plaintiff’s professional conduct and the content of his duties as an advocate, such as whether he caused the Council to depart from its obligations as a model litigant.

26 Mr Neil noted allegations made by the defendants that the information provided in the matters complained of related to (a) the fact that the plaintiff had made an unprovoked, gratuitous, false and damaging attack on the third defendant in the course of the Crossley prosecution and (b) the issue whether the plaintiff had afforded procedural fairness to the third defendant in doing so. Mr Neil submitted that, as a result of those allegations, a jury would have to consider the questions of whether or not as a solicitor advocate the plaintiff had made an unprovoked or a gratuitous or false or damaging attack without any factual basis and whether he had fulfilled “such duties as Browne v Dunne or set out in cases like Clyne”.

27 With great respect to Mr Neil, I do not think that follows. Section 30 of the Defamation Act sets out the elements required to be proved by the defendant to establish a defence of qualified privilege under that section. One of the matters required to be proved is “the recipient has an interest or apparent interest on having information on some subject”. By their particulars, the defendants have identified the plaintiff’s conduct as an advocate, including his alleged failure to afford procedural fairness, as the relevant “subject” for the purpose of the statutory defence. For the purpose of that defence, the jury will not be asked to decide whether the plaintiff in fact behaved in that way. The factual issues for the jury will be whether readers had an interest in having information on the subject and whether the letter was published in the course of giving information on that subject. The defence assumes that the information might have been wrong.

28 The position is the same in respect of the defence at common law. The defence focuses on whether the defendant was under a duty to provide the information, not whether it was true.

29 Mr Neil also submitted that factual questions as to the plaintiff’s compliance with his professional obligations arise from the third defendant’s plea of common law qualified privilege based on reply to an attack. He submitted that, in order to consider the factual issues that arise in relation to that defence, the jury would have to make decisions as to the content of the plaintiff’s professional obligations and whether he complied with those obligations. I do not think the question for the jury on that issue will require the jury to judge the plaintiff by reference to the principles that would apply in a negligence action or a disciplinary proceeding. The factual question will simply be whether the plaintiff made an attack on the third defendant.

Consideration of matters raised by the plaintiff

30 The first basis for the application is that the trial requires a prolonged examination of records, which is a discrete ground for dispensing with a jury under s 21(3)(a). Mr Neil contended that the matter would involve listening to “many hours” of tapes of the Crossley proceedings and probable examination of lengthy written transcript. As noted above, the particular extracts relied on by the defendants (as compiled by the plaintiff) come to only 22 pages. Further, since there are tapes and a certified transcript of the proceedings in existence, and the parties are represented by experienced counsel, I am confident that the parties through their counsel will endeavour to agree on a manageable presentation for the jury, in accordance with their respective duties under s 56 of the Civil Procedure Act 2005. In any event, by current standards as to what is expected of juries, the burden in this matter will be relatively light. I am not satisfied that the trial will require a prolonged examination of records such as to warrant dispensing with a jury.

31 The remaining grounds invoke s 21(3)(b), which focuses on the nature of the issues that would be required to be resolved by the jury. It would not be enough if I were satisfied that those issues could be more conveniently decided by a judge than by a jury. The test is whether I am satisfied that the trial raises issues that cannot be conveniently tried by a jury.

32 In Peck v Email Ltd (1987) 8 NSWLR 430, Clarke J expressed the view that the word “conveniently” does not refer only to the physical inconvenience that would be occasioned if the case were tried with a jury: at 433C. His Honour proceeded on the basis that the applicant must establish that there are circumstances of “unusual difficulty” from the point of view of the jury apprehending the matters involved and, to a lesser degree, from the point of view of the judge summing up. That is the test that Mr Neil says I should apply.

33 Mr Neil contended that the defences involve serious allegations against a solicitor in the performance of his professional duties, which he submits should be resolved by a judge. He identified a list of issues said to arise on the pleadings, as to which it was said that the jury would be expected to make “learned determinations about very complex and intricate legal issues such as the duties of a solicitor advocate in the Crossley case”. Mr Neal relied on the decision of the House of Lords in Osenton & Co v Johnson [1942] AC 130. That was a professional negligence case against a solicitor in which the House of Lords held that the proceedings should not be determined by an official referee where there was no right of appeal from the referee’s decision. Particular reliance was placed on the speech of Lord Porter at 153:

“ A litigant whose character or professional ability is attacked should not unless there are strong reasons to the contrary be deprived of his right to have the facts reviewed.”

34 The difficulty with that submission is that, in the present case, the plaintiff’s rights are governed by the Defamation Act 2005. That Act does not confer a right to trial by judge to a person whose character or professional ability is attacked in the proceedings. The only right expressly conferred is a right to trial by jury, subject to the Court’s limited discretion under s 21(3). A person who chooses to commence proceedings for defamation must be taken to have done so with knowledge of the defences available and the usual method of trial of those defences.

35 The argument advanced by Mr Neil entails the proposition that questions as to the propriety of the conduct of an advocate are inherently too complex for the comprehension of ordinary members of the community. It is submitted that there will be “unusual difficulty from the point of view of the jury apprehending, understanding, properly considering and resolving the issues raised”. I do not agree. In my view, the resolution of the factual issues raised in these proceedings calls for the ability to comprehend relatively straightforward questions of past fact and the application of common sense, both qualities assumed to repose in a jury.

36 As to the complexity of the issues raised by the defences of honest opinion and qualified privilege concerning the professional conduct of advocates, it is not known, and counsel agreed that I should not speculate, precisely what form of question would go to a jury. To some extent that is unchartered territory because, under the Defamation Act 2005, it appears the jury now has to decide whether the matter was published on an occasion of qualified privilege, which (even before the commencement of s 7A of the Defamation Act 1974) was historically a question for the judge: Morgan v John Fairfax (1990) 20 NSWLR 511 at 539B. As indicated above, I am not persuaded that any issue raised by the defences will require the jury to judge the plaintiff’s professional conduct against the standards of the profession as alleged by Mr Neil. If any such issue does arise, I am satisfied that it could be expressed in simple terms. In order to say that an advocate breached the (so-called) rule in Browne v Dunne, one does not need to say that the advocate breached the rule in Browne v Dunne. It is enough to say that he made a serious allegation about a witness at the end of the case when he hadn’t given that witness an opportunity to respond to the allegation in the witness box. Equally, the issue would not need to be presented, as contended by Mr Neil, as one involving considerations of Clyne v NSW Bar Association [1960] 104 CLR 186. It would be enough to say that the advocate made a very serious allegation when he did not have a proper basis for doing so. The assessment of such questions is familiar to lawyers but not, in my opinion, exclusively within their capacity; they are matters of common sense.

37 The New South Wales Parliament has seen fit to entrust defences in defamation trials to juries. Those defences do raise issues of some difficulty. In my opinion, the issues of fact raised in these proceedings cannot be said to suffer “unusual” difficulty.

38 Further, if I were to accede to the plaintiff’s application, I would in effect be acknowledging the existence of a special class of plaintiff (legal professionals) with rights different from those of any other class of plaintiff in defamation proceedings.

39 The third ground for the application is that there are complexities arising from the defences of comment and qualified privilege. To the extent that this raises different issues from those considered above, it is enough to say that those defences are expressly consigned to the function of the jury under s 22(2) of the Act.

40 As to the health of Mr McGeown, in my opinion that is not a consideration appropriately to be taken into account having regard to the terms of s 21(3)(b), which focuses on the nature of the issues to be determined by the tribunal of fact at trial. The plaintiff noted in his written submissions that Clarke J took the medical condition of the plaintiff into account in deciding to dispense with a jury in Peck v Email at 435C-D. However, his honour expressly noted that this factor was relevant only on the issue of discretion (the plaintiff was dying of mesothelioma and sought a trial by judge so that the matter could be heard before he died). In the present case, the sick party is the first defendant, and he wants a jury trial, but the threshold question is whether the test in s 21(3)(b) is satisfied.

41 Finally, as to the contention that trial by a judge alone is likely to result in a considerable saving of time and resources, that again is a matter which must be taken to have been considered and rejected by Parliament when it passed the Defamation Act 2005, including ss 21 and 22. Accordingly, I am not satisfied that there is any basis for an order under s 21(3) that the proceedings are not to be tried by jury.

Plaintiff’s answers to interrogatories

42 The plaintiff has provided answers to fifty-one interrogatories administered by the first defendant and verified those answers by affidavit sworn 21 December 2007. The third defendant seeks an order that the plaintiff give specific and non-evasive verified answers to all of the interrogatories apart from interrogatories 5, 7, 12 and 48.

43 In many instances the plaintiff has objected to answering the interrogatories on the grounds that they are “vexatious and/or oppressive” but has proceeded to answer under cover of that objection. Mr Stitt complained about that approach. He relied on the decision of Brooking J in Mitchell v Tsiros (No.1) [1982] VR 191 in which the Court held that the introductory words in those circumstances are devoid of consequences, being neither necessary to preserve a right to object to the tender of the answer at the hearing, nor effective to prevent the answer from being regarded as an answer. That being so, I do not think I should order the plaintiff to provide further answers on that ground alone. The third defendant can simply tender any such answers without the introductory words.

44 Many of the interrogatories take the form of asking the plaintiff whether, during the Crossley proceedings, certain words were said. The plaintiff has objected to answering those questions, but proceeded to answer under cover of the objection by setting out a fuller extract of the relevant exchange. In many cases, the full exchange set out includes words in exactly or very nearly the same terms as the words in respect of which an admission was sought. During argument, Mr Neil conceded that a more appropriate response might have been to say, when asked whether certain words were said, “yes, in the following context”. Since there appears to be an issue as to the words said, the plaintiff should answer yes or no to those questions, which are questions 1, 2, 3, 4, 11, 15, 18, 19, 20, 25, 26, 28, 29, 30, 31, 32, 35, 36, 39 and 45.

45 Question 6 asks whether the plaintiff admits that he did not on 13 August 2004 ask the Clerk of the Court whether there was a statutory declaration from Mr Hawkins. The plaintiff’s refusal to answer that question stems from his contention that he did not state to the Magistrate that he had done so. However, the third defendant will contend at the hearing that the words said by the plaintiff to the Magistrate should be understood to mean that he did. Accordingly, the question is relevant to an issue in the proceedings and a proper answer should be given.

46 The third defendant’s application seeks a proper answer to question 8 but a direct answer has been provided by the plaintiff in a supplementary response. I assume it was included in the application by error.

47 Question 9 asks: “Do you admit that on 13 August 2004 the proceedings were listed for hearing?” The answer states: “The plaintiff believes this is correct”. Mr Stitt complains that a statement of belief as opposed to an unqualified admission leaves “wriggle room” and that the plaintiff should be directed to provide a more direct answer. That may be so in the case of questions that seek concessions as to matters plainly within the knowledge of the party but in the case of question 9, it is not unreasonable for the plaintiff to qualify his answer. His position is that he cannot say definitively whether the Court in fact listed the proceedings for hearing on that date but has acknowledged his belief that that is the position. In my view that is an adequate answer.

48 Question 10 asks whether the plaintiff admits that there was no application for an adjournment made by any party on 13 August 2004. The plaintiff’s response is to object but, under cover of the objection, to set out the relevant transcript. He has not answered the question. As he is a solicitor, and appeared at the relevant hearing, in my view he ought to be able to answer the question whether there was an application for an adjournment on a particular day.

49 The position is the same in respect of question 13, which asks whether he admits that an application was made for an adjournment by Mr Listen appearing for the accused on 12 October 2004. The plaintiff has answered that question “The plaintiff believes this is correct”. He should be able to answer yes or no to that question. The position is the same in respect of question 14, which asks whether he admits that a medical certificate was tendered by Mr Listern in support of that application for an adjournment. The plaintiff should be able to answer yes or no to that question. The position is the same, for the same reasons, in respect of question 17.

50 Question 16 asks: “Do you admit that the adjournment was granted and the matter subsequently returned to the Court on 4 February 2005?” The answer is “The Plaintiff admits that the matter was adjourned for hearing to 4 February 2005”. The answer omits reference to the issue whether the matter was adjourned because the adjournment was granted but, so far as I can see, nothing would be likely to turn on that issue. In my view the answer to question 16 is adequate.

51 Question 21 asks “Do you admit that at no time in the course of cross-examining Mr Hawkins did you put to him that he was involved in a criminal conspiracy?” The plaintiff objects to answering that question on the grounds that it is “vexatious and/or oppressive”. The difficulty I have with that position is that, as set out in [26] above, the plaintiff contends that the issue whether the plaintiff put those matters to Mr Hawkins is squarely raised by the pleadings. In those circumstances, I can see no proper basis for the plaintiff to object to answering that question. Questions 22, 23 and 24 are in the same category.

52 Question 33 takes the form of asking “do you admit” a certain matter and the answer is that the plaintiff does not so admit. Mr Stitt says that a direct answer should be given in respect of the underlying proposition. I agree, but in my view the position would be clearer, and less prone to be debated at the trial, if the question were not prefaced with the words “do you admit”. The third defendant should have leave, if he seeks it, to administer an interrogatory directed to that issue which asks the question directly “was the statement made by you to the Magistrate that straight away a subpoena was issued at the first convenient thing (sic) to the vets false in fact?” The position is the same in respect of questions 34, 37, 38, 43, 44 and 51.

53 Questions 40 and 41 ask about the plaintiff’s intention when he made certain statements and he has answered, although under objection, by stating what his intention was. In my view he has provided adequate answers to those questions.

54 Question 42 asks, more specifically, whether the plaintiff intended to convey a certain matter. He has answered that he intended to convey something else but he has not answered the question. A proper answer should be provided to that question.

55 Questions 46 and 47 deal with facts concerning a subpoena issued in the Crossley proceedings. The plaintiff has answered by reference to his belief. Those are not matters definitively within his knowledge and in my view his responses to those questions are appropriate.

56 Question 49 asks when the plaintiff first inspected certain documents and the substance of the answer is that he did not inspect them. In my view his response to that question is adequate.

57 Question 50 asks a question about a limitation period. The plaintiff has answered by reference to his belief. The subject of the question is a matter of legal conclusion and in my view his response is appropriate.

Third defendant’s application to set aside subpoenas

58 The third defendant moves to set aside subpoenas issued to James Hawkins (the third defendant’s son), Cessnock City Council and Hunter Rural Lands Protection Board. In each case, the documents sought relate to the issue whether the third defendant owned a dog named “Guess”. The relevance of the third defendant’s ownership of that dog is said to arise from a “gloating” advertisement published by him soon after the end of the Crossley prosecution (in which the charges against Ms Crossley were dismissed). The advertisement states “we won” and has a photograph of the third defendant, Ms Crossley and two black dogs. Mr Neil stated that there is a real issue in the proceedings as to the third defendant’s honest opinion and as to his honest belief in what he published. It was said that, in respect of those issues, the credit of the third defendant would be in issue at the trial.

59 Against those propositions, the relevance of the documents sought is obscure. Mr Neil stated that the reason for seeking the documents is that it is possible that the dog named “Guess” was acquired especially for the purpose of the photograph in the so-called gloating advertisement. The documents sought in the subpoenas are said to go to the issue of whether “Guess” is the third defendant’s dog and, if so, when he acquired that dog.

60 I accept, as submitted by Mr Neil, that the test I should apply is that summarised by Brereton J in A v Z [2007] NSWSC 899 at 19, where his honour said:

“Accordingly, I would approach the question primarily on the basis of asking whether, on the one hand, the documents called for are apparently relevant or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of subpoena, or whether on the other, they are manifestly irrelevant and incapable of touching matters of credit, in which case the subpoena would be an abuse of process.”

61 In my view, the documents sought are manifestly irrelevant and are incapable of touching on any matter of credit relating to the third defendant. Further, the theory that the third defendant acquired the dog “Guess” for the purpose of having his photograph taken with it for publication in the gloating advertisement appears to me to be highly speculative. I am satisfied that there is no legitimate forensic purpose for the subpoenas and that they should be set aside.

Plaintiff’s notice to the third defendant to produce the certified transcript

62 The third defendant moves to set aside a Notice to Produce issued by the plaintiff seeking production of the third defendant’s certified copy of the transcript of the Crossley proceedings. Mr Stitt submitted that the third defendant should not be compelled to produce that document. First, he noted that the best evidence of what was said in the Crossley proceedings is the tapes, so that the transcript may not be needed for the hearing at all. Secondly, he submitted that the third defendant has obtained a forensic advantage by taking the steps, and spending the money, necessary to obtain the certified transcript and should not now be compelled to give up that advantage in favour of the plaintiff.

63 In my view, such advantage as there is in having a document that the plaintiff does not have must surrender to the overriding purpose of the Civil Procedure Act. I am of the view that it will facilitate the just, quick and cheap disposal of the real issues in these proceedings if the transcript is produced to the plaintiff now. It may assist him to provide proper answers to the interrogatories in accordance with my reasons in relation to Mr Stitt’s application above. It may also assist the parties to reach sensible agreement as to the conduct of the trial. In circumstances where the plaintiff is the solicitor who appeared in the proceedings, and there is in existence a certified transcript of the proceedings together with tapes, it seems unlikely to me that there will be any real dispute as to what words were said in Court. I accept that there may be parts of the proceedings in respect of which the tapes are unclear but, in the main, I would expect the parties to be able to agree on those issues.

64 I am sympathetic to the third defendant’s complaint about the money he has spent in obtaining the official transcript. Mr Stitt indicated at the conclusion of the hearing that, if I was minded to order his client to provide a copy of the transcript to the plaintiff (which I am), I should do so on the following conditions:

“(1) That the plaintiff pay half the cost involved in obtaining the transcript.
(2) That the plaintiff pay the cost of photocopying the copy to be produced.
(3) That the plaintiff obtain the necessary waiver of copyright from the Attorney-General.”

65 In my view, the third suggested condition is a matter for the plaintiff but I accept that the first two suggested conditions should be imposed.

66 I direct the parties to bring in short minutes to reflect these reasons. I will hear the parties as to costs.

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