Nagle v Chulov
[2001] NSWSC 9
•25 January 2001
CITATION: Nagle v Chulov & 2 Ors [2001] NSWSC 9 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 11681 of 1999 HEARING DATE(S): 3 December 1999 JUDGMENT DATE:
25 January 2001PARTIES :
PETER RICHARD NAGLE
(Plaintiff)v
MARTIN CHULOV
(First Defendant)ANDREW WEST
JOHN FAIRFAX PUBLICATIONS PTY LIMITED
(Second Defendant)
(Third Defendant)JUDGMENT OF: Levine J
COUNSEL : J Cummins Q.C.
R A Campbell
(Plaintiff)S Rares S.C.
M Sexton S.C. Solicitor-General
R McHugh
(Defendants)
J Gibson
(Attorney-General)SOLICITORS: Barclay Benson
(Plaintiff)Freehill Hollingdale & Page
Crown Solicitor's Office
(Defendants)CATCHWORDS: SCR Pt 3 r 1 - Preliminary Discovery - sufficiency of evidence - Defamation - newspaper rule - Constitutional Law - validity of SCR Pt 3 - Lange's case CASES CITED: Blann v Nationwide News Pty Limited & Ors (unreported, 15 May 1998)
Cojuangco [1984] 4 NSWLR 513
Cojuangco [1987] 8 NSWLR 145
Herald & Weekly Times Limited v Victorian Guide Dog Owners & Friends Association & Anor (1990) VR 451
H & H Security Pty Limited v Toliopoulos (Levine J, 17 May 1995, unreported)
John Faifax & Sons Limited v Cojuangco (1988) 165 CLR 346
Lange v Austalian Broadcasting Corporation (1997) 189 CLR 520
Latec Finance Pty Limited v Drury (1960) 77 WN (NSW) 674
Nationwide News Pty Limited v Wills (1992) 177 CLR 1
Survival & Industrial Equipment (Newcastle) Pty Limited v Owners of the Vessel "Alley Cat" (1992) 36 FCR 129DECISION: Summons Dismissed: see paragraph 107
DLJ: 2
[2001] NSWSC 9
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST
No. 11681 of 1999
JUSTICE DAVID LEVINE
THURSDAY 25 JANUARY 2001
PETER RICHARD NAGLE
(Plaintiff)
v
ANDREW WESTMARTIN CHULOV
(First Defendant)
(Second Defendant)
(Third Defendant)
1 By a series of summonses, the plaintiff seeks orders asserted to be available to be made pursuant to SCR Pt 3 r 1 (Preliminary Discovery).
2 The original Summons was filed on 13 July 1999; by consent, an Amended Summons was filed on 15 November 1999 and on 3 December 1999 leave was granted to the plaintiff to file a Further Amended Summons.
3 The orders now sought by the plaintiff are:
- “1. An order pursuant to SCR Pt 3 r 1 that the first and second defendants attend before the Court at a time to be fixed to be orally examined in relation to the identity of the person or persons who provided the matter specified in the letters to them of 8 July 1999 being annexures G, H and I to the affidavit of Mark Frederick Williams sworn 9 July 1999.
- 2. An order that the third defendant by its Proper officer attend before Court at a time to be fixed to be orally examined in relation to the identity of the person or persons who provided the matter specified in the letters of 23 June, 1999 being annexure D to the affidavit of Mark Frederick Williams sworn 9 July, 1999.and 8 July, 1999 being annexures G, H and I to the affidavit of Mark Frederick Williams sworn 9 July, 1999.
- 3. An order the Defendants produce as on discovery all documents including hard copy printouts of electronically transmitted documents relating to the matter identified in Orders 1 and 2 hereof.
- 4. Damages for defamation by reason of the publication of matter being the imputations defamatory of the Plaintiff:
- (a) that the plaintiff is under investigation by the Independent Commission Against Corruption and has been so for the past twelve months on claims that he has been corruptly using his electoral office in connection with his practice as a barrister;
- (b) that the plaintiff is reasonably to be suspected of corruptly using his electoral office in connection with his practice as a barrister;
- (c) that the plaintiff is reasonably to be suspected of corruptly obtaining a trip for two to Europe in 1989; and
- (d) that the plaintiff behaved immorally in continuing to sit as the Chairman of the ICAC Ethics Committee despite being continuously under investigation by that body for alleged corruption between June 1998 and March 1999”.
4 I leave to one side for the moment Order 4.
5 The orders can only make sense by reference to the affidavit of the plaintiff’s solicitor Frederick Mark Williams sworn 9 July 1999.
6 Annexed to his affidavit are photocopies of three publications. The first, bearing the headline “Labour MP in ICAC Probe,” is said to have been published in “The Sun Herald” on 20 June 1999. The second bearing the headline “Nagle Aide Sues for $1.2 million,” is said to have been published in “The Sun Herald” on 27 June 1999. The third, with the headline “Angels Who Sued Speaker” is said to have been published in “The Sun Herald” on 4 July 1999.
7 The first article has the by-lines of the first and second defendants. The first two paragraphs of this article refer to ICAC probing claims that Mr Nagle’s office was used in connection with a private law practice. The allegations, it is said, were received by ICAC twelve months previously “The Sun Herald has learned”. The article goes on to deal with what is said to be Mr Nagle being among more than twenty state politicians involved in ICAC reviews on several matters; it deals with his constituency; the fact that he is a barrister; overseas travel and the fact that he had been Chairman of the Parliamentary committee which oversees the ICAC and Ethics Committee. Reference is made to a trip for two apparently won by Mr Nagle and to an allegation of a conflict of interest in relation to certain legal fees claimed by him for representing certain parties before a parliamentary committee and the fact that the then Attorney-General cleared him of any ethical breach. ICAC, according to the article, has refused to confirm or deny there is an ongoing investigation in connection with Mr Nagle’s electoral office. The article goes on to assert that “The Sun Herald” had tried repeatedly, but unsuccessfully, to contact the plaintiff.
8 The second article (with the by-line of the first defendant), appears to report that a former government employee is suing the Parliament for $1.2 million alleging that the plaintiff required her to assist him in running a private barrister’s practice from his electoral office. The claimant is identified as Kristine Frost. The proceedings are identified as being before the NSW Industrial Relations Commission (IRC). There is reference in the article to a “suppression order” sought before the State election banning any mention of the parties involved or the nature of the proceedings. That suppression order had been lifted by the Full Bench of the IRC on the Thursday preceding the publication of this article. Reference is made to the enforcement of the suppression order 16 days after claims were made in affidavits from Mr Nagle together with senior Labour Party official, Mr Roozendaal as to adverse effects on electoral chances. This article bears a reproduction of part of the first article including its headline. The article also states that in a letter to “The Sun Herald” Mr Nagle’s solicitors had denied that their client’s parliamentary office had been used for the purpose of his legal practice.
9 A third article (with the by-line of the first defendant) said to have been published on 3 July 1999 deals with actions taken by three named persons who have worked for State Members of Parliament. It sets out the nature of the allegations the claimants, including Ms Frost’s in her claim against Mr Nagle in the Summons before the IRC.
10 By letter dated 23 June 1999 (annexure D to Mr Williams’ affidavit) a request is made to the Editor in Chief of The Sun Herald that he identify by name the source of the allegations so that the plaintiff may take action for defamation against that person. The assertion is made that the article is untruthful in its content and grossly defamatory. An apology is called for. It is to be noted that this letter was not admitted as to the truth of the assertions made therein.
11 Annexure E is the reply from Richard Coleman of the Legal Unit of John Fairfax Publications Pty Limited informing the plaintiff’s solicitors that the matter was being investigated. Annexure F is a more formal reply from Mr Coleman dated 25 June in which he states: “I am instructed that The Sun Herald in keeping with journalistic practice will not identify the source of information contained in the article”. He goes on to say The Sun Herald stands by the story and declines to publish an apology. It is made quite clear by Mr Coleman that any proceedings instituted by the plaintiff would vigorously be defended.
12 Exhibits G and H are letters dated 8 July 1999 (that is after the publication of the third article) addressed to the first and second defendants respectively care of The Sun Herald newspaper. The copy letters annexed to the affidavit disclose a facsimile number 9288 3729 for Mr Chulov and Mr West. There is no evidence that that is a facsimile number for either of those gentlemen. In any event, the letter refers to the three articles and indicates a desire on the part of the plaintiff to commence proceedings against the following persons:
- “1. Those who provided the accusation made in your article (1) that our client was the subject of an ICAC probe and that the ICAC had been looking into accusations concerning Mr Nagle for 12 months or more.
- 2. That who provided the assertions in your article (2) as to the matters you have claimed to be alleged against Mr Nagle in the Industrial Commission and as to the alleged affidavits of Mr Nagle and Mr Roozendaal (sic).
- 3. Those provided the assertions set out in article (3) as to allegations said to be made by Ms Frost against Mr Nagle”.
13 These letters were admitted on a limited basis also.
14 Exhibit I to the affidavit is a further letter dated 8 July 1999 from the solicitors for the plaintiff to Mr Richard Coleman addressed to a facsimile number 9282 3715. Apparently with that letter was enclosed photocopies of the letters said to have been faxed to Mr Chulov and Mr West. Exhibit I was admitted on the limited basis referred to and requests that the information sought from the first and second defendants be also provided by the third defendant (Fairfax). A time limit of 4pm on 8 July 1999 was fixed requiring a response otherwise “an application for pre-suit discovery” would be made.
15 I pause at this point to note, and merely to note, that whilst there is no issue that the facsimile number on the letter to Mr Coleman of 8 July was a correct one and that the letter was received by him, there was no evidence that the first and second defendants received the communications addressed to them at the other facsimile number (which was stated from the bar table to be the facsimile number of News Limited - a statement of interest but of no evidentiary significance). In any event, I do not consider in the whole scheme of this application anything of substance turns on this curious aspect: the three defendants were represented by the one set of legal advisers.
16 In paragraph 7 of his affidavit Mr Williams deposes on information and belief, that the plaintiff is unaware of the identity of the person or entity who gave the information contained in the articles and that the plaintiff is not aware of any source apart from the defendants from the whom the identity of the source can be obtained. The affidavit goes on (para 9) to assert that the defendants have, “despite the request to third defendant (Fairfax) failed to identify the person or entity who gave the information to the defendants concerning the plaintiff and that the plaintiff has instructed Mr Williams that he wishes to sue the person or entity who gave the information to the defendants and to sue those persons for defamation”.
17 Returning to paragraph 4 of the Further Amended Summons: this is not a mechanism for the institution of proceedings against the three defendants claiming damages for defamation in respect of the imputations set out. This was expressly stated by Mr Cummins Q.C. for the plaintiff who explained that the inclusion of the imputations was on the basis that there must be some disclosure or an indication of the existence of a cause of action for the purposes of a Pt 3 application, reliance being placed on a decision of myself in Blann v Nationwide News Pty Limited & Ors (unreported, 15 May 1998).
18 I can only conclude that the causes of action constituted by the imputations set out in order 4 have been based upon what was published in the newspapers. It is not at all clear from the Summons, and certainly not from the affidavit that in the event of proceedings against the putative defendants that these imputations would (or could) be the causes of action. An inference is available that the plaintiff has assumed that information allegedly provided to Fairfax for the publication of three newspaper articles would or could give rise to the same causes of action.
19 The submissions for the plaintiff in this evidentiary context to which I will have to return in due course are as follows: by reference to what was said by Hunt J in Cojuangco [1984] 4 NSWLR 513, the applicant needs to show that the discovery sought is necessary in the interests of justice. He will show that if he establishes that he may be unable to obtain what is described in submissions as the “ultimate relief” which he seeks unless he is able to proceed against the newspaper’s source: Cojuangco (supra) at 523C and Cojuangco in the Court of Appeal [1987] 8 NSWLR 145 at 148 per Glass JA.
20 The evidence establishes, it was submitted, that the plaintiff has a cause or causes of action against those persons who provided the “allegations” to the defendants sufficient to make it proper that preliminary discovery should be awarded in the interests of justice. The plaintiff has made reasonable inquiries to identify those persons. The plaintiff has been unable to establish the identity of those persons. The defendants have knowledge of facts which will identify those persons. The defendants will not disclose those facts without an order for preliminary discovery. These matters are sufficient, it is said, to justify he making of the orders sought (Cojuangco (supra) at 516-7).
21 The plaintiff, it is submitted, does not have an adequate remedy without the orders sought because the defendants are entitled to rely upon qualified privilege as identified by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 which places the entire emphasis on the reasonableness of the conduct of the “publisher”. That, it is said, will depend upon the publisher in question (compare what Hunt J said in Cojuangco at 526C - D: ”the basis upon which this defence may be available to the informant himself must be very different” - his Honour was, of course, speaking of s 22 under the Defamation Act 1974).
22 The submission so framed seems to me to presuppose the inevitability of success on the part of the three defendants in the Summons, if sued in an action for defamation, based upon the Lange qualified privilege. Whether or not the defendants, if sued, would succeed on that basis, bearing in mind the onus of proof on the defendants in relation to the reasonableness of their conduct, can only be established at trial.
23 It is argued, however, that the conduct of those from whom the defendants in the Summons obtained the information published was “quite obviously” not the same as that of the defendants as commercial publishers evaluating whether to publish a matter, a process which may involve an assessment of the credibility of the source. Whilst, in my view, that may be correct insofar as the newspaper is concerned in determining the reasonableness of its conduct or the existence of any belief in its truth - that is, the credibility of the source - it does not necessarily follow that the source will be in any different position as a matter of law vis-a-vis the availability of the Lange defence. The Lange defence is, of course, concerned with freedom of speech and not merely freedom of the press. Hypothetically, whoever the source might be if there is any, and bearing in mind the onus, that source might well enjoy the same status as a litigant on the determination of factual and legal issues as would a media defendant on the Lange defence.
24 Further, it was submitted, that all species of qualified privilege can be defeated by malice. Malice in a corporate defendant must be identified as in the mind of one its servants or agents and it is has to be acknowledged that there might be more difficulty in establishing malice to defeat an otherwise available defence of privilege in a newspaper, whether in its corporate status by its servants or agents or by its journalists in particular, than in someone who provided the information to the newspaper. The plaintiff has proceeded, however, upon the assumption that the Court may well accept the defendants’ assertion that they acted without malice, whereas the actions of the person who “went bearing these tales” to the newspaper to seek “publicity for them is entirely different” and therefore prima facie malicious. I have great difficulty in coming to the view that one can, with facility, make such wide ranging statements or assumptions as to the state of mind in whomsoever it was (if there was any such person) who provided the “information” or “allegations” to the defendants in the Summons, let alone in the “mind” of the defendants themselves.
25 Other problems are identified with relief being sought from the named defendants. Damages, it is submitted, may be aggravated by the conduct of the individual defendant and the plaintiff’s feelings may be further hurt by the apparent motives of the publisher. It was submitted that the Court could not be satisfied that the measure of damages would be the same against the defendants to this Summons as might be awarded against the party or parties who initiated the publication: this is unarguably so - as stated below, the damages from the “source” as a defendant could well be less than from Fairfax.
26 The expression “parties who initiated the publication” is an interesting one and indeed, an important one. Liability in those persons who provided the information to the defendants would be as original publishers to the defendants and as persons sought to be made liable for re-publication (it has to be assumed) by the defendants in the Summons. No consideration was given in the plaintiff’s submissions to any difficulty that might arise in relation to the quantum of damages being affected by the question of the original publisher being liable for a non-actionable defamatory publication by the re-publisher by reason of the operation, for example, of the Lange defence. Important questions of causation could very well arise.
27 It is further said that the defendants to the Summons would, if sued for defamation, seek to rely upon comment as a defence. This may well be so, it is pure speculation. The persons named in the Summons have not disclosed, and indeed are not obliged to disclose, any defences upon which they would rely if sued. It is quite right however on the part of the plaintiff to assert that the availability of the defence of comment can be affected by the identity of the person whose comment a defendant asserts it to be. The matters provided for in ss 32, 33 and 34 of the Defamation Act 1974 in defeasance of any such comment will vary according to the status of the opinion holder. Nothing more than this obvious proposition can presently be addressed.
28 Further, reliance is placed upon what was said by Hunt J in Cojuangco (supra) at 525B: “the issue, of course, is not whether the applicant is likely to succeed against the newspapers; it is whether he is likely to obtain the relief to which he entitled if restricted to suing the newspaper”.
29 At this point it seriously can be remarked as to whether any conclusion can be reached as to the notion of “restriction” referred to by his Honour is applicable at all in the evidentiary context of this application. On the view I have adverted to above, namely that there might be available to the newspaper a Lange defence and equally available to the newspaper’s source a Lange defence, consideration of any notion of “restriction” is almost superfluous.
30 In other words, arguably if the applicant is unlikely to succeed against the newspaper by reason of the operation of the Lange defence, can it be said that he is likely to obtain the relief to which he is entitled by suing the suppliers of the information to the newspapers when there could apply to those “publishers” the very same defence let alone any other common law privilege or s 22 defence? This leaves to one side, of course, the notion of an effective remedy in terms of the availability of a party who has the resources to pay any award of damages. Indeed, as was hinted at during the course of submissions by the defendants, one view of this current application is that the plaintiff is seeking not to sue the party with the resources, but is hunting for or fishing for persons or entities which might end up being persons of straw.
31 It was submitted for the plaintiff that the relief to which the plaintiff is entitled by way of “vindication” will be a substantially different matter depending upon the identity of the party to be sued. For there to be an “effective” remedy it is required that the plaintiff be informed of the identity of the party who may be liable in “more substantial damages” (Herald & Weekly Times Limitedv Victorian Guide Dog Owners & Friends Association & Anor (1990) VR 451).
32 The one hypothesis to which I have adverted above, namely, that the plaintiff is proceeding against a party with resources in the quest of a party without, on the false premise that the party without resources will not have the Lange or other defences available to it or them, somewhat detracts from the submission that an “effective” remedy requires the plaintiff to be informed of the identity of a party who may be liable in more substantial damages.
33 For the defendant it is submitted first that the Summons must fail at the threshold. The sole evidence in support of the Summons is the affidavit of Mr Williams to which I have referred.
34 This submission I accept.
35 The affidavit does not suggest, let alone, establish that any person provided any information to any of the defendants in connection with these articles. Nor does the affidavit provide any evidence of any publication by such a person to any of the defendants which would be actionable in defamation, there being simply nothing in the three articles that points to the publication of any of them as a result of information provided by a source.
36 The plaintiff’s submissions were founded upon, in effect, an interconnection between the three articles of which complaint is made: the first and second articles, especially by reference to the inclusion in the second article of the reference to the first, and the statement in the first that “The Sun Herald has learned”. The very process of interconnection, not only highlights the failure to prove that a person provided information but fails to prove that the publication by the defendants of the three articles was as a result of information provided by a source.
37 The plaintiff bears the onus of establishing that he would have a cause of action against the defendants’ putative source. The gist of an action in defamation is the publication of defamatory imputations and here the plaintiff has failed, even in outline form, to identify the substance of the publication (that is, the original publication by the putative source) let alone the imputations carried by it. The last mentioned proposition can only be reinforced by the structure of the application and the evidence in support of it: the imputations identified as the causes of action are only identifiable by reference, not to information conveyed by the putative sources, but rather to the publications by the defendants named in the summonses. In other words the plaintiff has failed to identify any causes of action on which he might sue the putative source.
38 The plaintiff claims that the evidence demonstrates that he has a cause of action against the defendants’ sources “sufficient to make it proper that preliminary discovery should be awarded in the interests of justice”. I agree with the defendants’ proposition that the statement of the plaintiff’s position in those terms really begs the question of the exercise of discretion.
39 With respect to the plaintiff’s submission that the plaintiff has established that the “plaintiff has made reasonable inquiries to identify those persons”, the evidence does not support it. Mr Williams affidavit deposes solely to inquiries made of the three defendants. There is no evidence of any inquiry made of any other persons (cf. Blann (supra) at 10).
40 This is the more extraordinary, it is submitted for the defendants (and I accept it) when the three articles (the essential linkage together of which is fundamental to the plaintiff’s position) refer to at least the following entities and persons of whom one might reasonably think the plaintiff could have made inquiries: (a) Ms Kristine Frost, the plaintiff in the Industrial Relations Commission proceedings; (b) Mr Alex Howen, Counsel to Ms Frost; (c) any other members of Mr Nagle’s electoral staff; (d) Ms Anne Stonham and Ms Joyce Cabarel, plaintiffs in similar proceedings; (e) ICAC itself; (f) the Parliamentary Committee which oversees ICAC; (g) the Legislative Assembly and the Speaker of that body; (h) the Industrial Relations Commission; (i) Mr Eric Roozendaal and M Rothman S.C., Counsel for Ms Frost.
41 It is argued that any one of those person or entities could have been the present defendants’ source (if any of them), and each of them would be a reasonable starting point for the plaintiff’s inquiries. So too would any public document held by the IRC, ICAC or the Parliament. With this, I agree.
42 Mr Williams’ affidavit is silent in respect of any inquiries that the plaintiff has made otherwise than those directed at the three defendants named in the Summons. In those circumstances I am persuaded that no weight can be given to the statement that the plaintiff is “not aware of any source other than the defendants” from whom the identity of the source of the information can be obtained. Nor can weight be given to the statement that the plaintiff has been unable to ascertain the identity of those persons. If weight can be given to the latter statement, in the absence of the plaintiff giving any evidence at all as to making reasonable inquiries, that would not be sufficient to ground this application.
43 In respect of the submission that the defendants’ have knowledge of facts which would identify the persons, I find, there is no evidence of that. There is no evidence as to the existence of any such persons whose identity would otherwise be within the defendants’ knowledge, let alone evidence that the defendants have knowledge of facts which would identify them.
44 Assuming further that the defendants conceded (which they do not) knowledge of such facts, the defendants do not deny that they are unwilling to disclose them: that is ,however, insufficient by itself to satisfy the jurisdictional threshold in Pt 3 r 1.
45 As was pertinently pointed out in the submissions for the defendants, these matters to which I have referred, which properly be regarded as jurisdictional, were expressly conceded by the defendant in John Fairfax & Sons Limited v Cojuangco in the High Court (1988) 165 CLR 346 at 350.3-350.5. The plaintiff’s failure to establish these matters on affidavit evidence in this case, it was submitted, requires that the application be dismissed at the threshold. I am persuaded by the submissions adopted generally above, for the defendants, and will decline relief on the threshold basis.
46 The “threshold” submissions constituted the defendants’ first basis of opposition to the relief sought.
47 The second basis was founded upon the High Court’s decision in Cojuangco (supra). Again I adapt the parties’ careful submissions.
48 Cojuangco established that a judicial discretion rests on the judge hearing the Summons (supra) at 357; the fact that a discretion exists does not mean that upon its being enlivened orders automatically follow in favour of the moving party.
49 The exercise of the discretion in defamation cases is “unquestionably” informed by the policy considerations which underlie the existence of the newspaper rule (357.4). One aspect of the exercise of the discretion was described as follows: ‘what an applicant must show is that the order sought is necessary in the interests of justice; in other words, the making of the order is necessary to provide him with an effective remedy in respect of the actionable wrong of which he complains” ((357) emphasis added). Contrary to what was submitted by the defendant paragraph 4 of the Further Amended Summons is not an initiation of substantive proceedings claiming damages for defamation against those defendants. I say this in the context of the submission that an order under the rule will not usually be made where substantive proceedings have already been commenced (Survival & Industrial Equipment (Newcastle) Pty Limited v Owners of the Vessel “Alley Cat” (1992) 36 FCR 129; H&H Security Pty Limited v Toliopoulos (Levine J, 17 May 1995, unreported).
50 It was, however, argued that for the purpose of the present Summons it may be assumed (leaving to one side the precise form of the plaintiff’s imputations), that the articles in question contain material defamatory of the plaintiff. It thus follows that the “actionable wrong” of which the plaintiff complains in respect of any publication to the defendants by their putative source cannot be - from the point of view of damages, at least - any more serious than the publication (a putative re-publication) by the present defendants. Thus the plaintiff has an effective remedy which indeed is available to him.
51 The availability to him of that effective remedy cannot presently be determined as having been diminished to the point of non-existence by what the plaintiff asserts to be the defendants’ entitlement to rely upon various forms of qualified privilege. It simply premature to agitate that question on the Summons. Further as the High Court recognised in Cojuangco (357.9) the mere fact that such a defence may be pleaded is not enough. Rather “it is for (the judge) to form a conclusion that the defence might well succeed on the materials before him” (emphasis added).
52 The plaintiff has adduced no evidence of any description to demonstrate any real prospect that the present defendants would succeed on such a defence. Nor is it possible to evaluate this given that the plaintiff has not articulated any cause of action against the putative source that the plaintiff could maintain notwithstanding that the defence is available to the defendants and that source.
53 The Court is entitled to take into account in exercising its discretion the reality that the defence under s 22 of the Defamation Act 1974 together with its common law analogue in Lange rarely, if ever, succeeds for a media defendant.
54 Further, as I decided in Blann v Nationwide News Pty Limited at 11 a plaintiff is not permitted to fish for a “malicious” defendant.
55 The plaintiff, whilst not expressly conceding that the defendants will succeed on the defence of qualified privilege, has argued the Summons on the basis that the defence is clearly available. In fact it is fair to observe that the plaintiff, while not expressly conceding the defence, has really assumed its successful prosecution. But the plaintiff has done so vis-a-vis the defendant (and has assumed to the contrary vis-a-vis the source) without any evidentiary foundation or “materials”.
56 With respect to the measure of damages component of what the plaintiff says are further “problems” with relief against the defendants in the Summons, the reality is, (so it is submitted), that corporate media defendants always bear the “lions share” of any damages award. No prejudice can genuinely be asserted in this regard. As I have already remarked, this whole exercise can be viewed as pointing to the putative source being a person of straw.
57 As to the plaintiff’s submissions in relation to a possible defence of comment and the matters arising dependent upon the identity of the person whose comment is asserted, the existence of those variations of course does not preclude the availability of the defence to any putative source.
58 Further it is difficult to envisage, in the context of vindication and damages, any Court awarding a smaller sum for vindication against a newspaper of national circulation as against the paper’s confidential sources. Any difference in the award however, has to be of such a magnitude and nature that enables it confidently to be said that without suing the putative source, the plaintiff will not have an effective remedy, in respect of the actionable wrong of which he complains (Cojuangco at 357.3). This, of course, is not the same as having all possible remedies.
59 Insofar as the plaintiff complains that the defendant has given no indication of any preparedness to refrain from reliance upon any defences which may impose upon the plaintiff a burden different to that which would be faced if the informant were to be sued, this demonstrates the deficiencies in the plaintiff’s case if not an acknowledgment that the present application is, at the least, premature. It is argued that it is not surprising that the defendants have given no such indication; they do not have to and no proceedings have been instituted pleading causes of action against them. These submissions are clearly correct.
60 Furthermore, to the extent that the plaintiff refers to defences which “may” impose upon the plaintiff a burden different to that which would be faced if the informant were to be sued, it must be accepted, and it is, that the court cannot possibly assess that prospect and should not speculate about it. Nor does the possibility of such defences demonstrate the existence of an effective remedy for, as I have said above and has been submitted above, the sources may have the same defences. Until the plaintiff specifies its claim against the putative informant, the Court cannot begin to make comparisons. There are no reasons for coming to any view at this stage that would warrant the exercise of the discretion to make orders, on the basis that that the remedy, if any, which the plaintiff has against the present defendants would be any less “effective” than the remedy against the defendants’ putative source.
61 It was further agued that two other matters weigh in favour of exercising the discretion against the plaintiff in the present case. The first is that three articles of which the plaintiff complains make no reference to sources “whatsoever” (though there is in the first article the elliptical statement that “The Sun Herald has learned”). There is thus a striking difference between this case and Cojuangco where the publication referred to an unnamed “senior American bank official and prominent local businessman” and thus suggested “a solid basis of support” for the defamatory imputations made. Whilst the High Court relied heavily on that factor (at 358) its equivalent is absent from the present case.
62 The second matter is that this is a case at the heart of political discourse, it was argued, where the imputations themselves concern the suitability for office of a member for Parliament and alleged abuses of his office. The “policy considerations” which underlie the existence of the newspaper rule (see Cojuangco at 357.1) are of particular importance in such a case. The defendants’ sources or source, if any, is in the classic position of a “whistleblower”. Moreover the factual circumstances of this case (as set out in the matters complained of) involve legal proceedings between a member of the plaintiff’s staff and office of the Parliament which focus on the plaintiff’s conduct as a public official. In those circumstances the free flow of information to the media is of fundamental importance. The Court should be slow to accede to an application which would have the effect of silencing such sources.
63 As to the first of these two matters, there is certainly a basis for distinguishing this application from that with which the courts were concerned in Cojuangco. But the success of what I will describe as the second leg of the defendant’s attack upon the Summons, (the Cojuangco discretion), does not need, for its success the first of these last two propositions.
64 The second proposition raises matters of principle and policy more directly concerned with the decision in Lange to which I will come shortly.
65 However, it is clear to me that the defendants must succeed in this Summons on the basis that the plaintiff has failed in the factual matters to found the application on a threshold basis and secondly, if the position is otherwise, the exercise of (Cojuangco) discretion must, for the reasons advanced by the defendants save for the last two matter above, be in favour of the defendants.
66 Before turning to the Lange qualified privilege component of the defendants’ position, there are some matters in relation to the form of the Further Amended Summons that have to be dealt with.
67 It was originally complained that Order 1 was vague and embarrassing. In its final form I am satisfied that an order in that form could be made.
68 As to order 2 it was directed to the third defendant (Fairfax) by its “proper officer” to attend “to be orally examined”. It is clear that the rule distinguishes between “persons” in the sense of natural persons in sub-rule (1) and “corporations” and “officers of the corporation” in sub-rule (2). The only thing that sub-rule (2) empowers the Court to do is to make an order that the “corporation” or “any officer of the corporation” produce “any document of thing in the possession, custody or power of the corporation relating to the identity or description of the person concerned”. There is nothing in Pt 3 r 1 that empowers a Court to direct a corporation by any “officer” to be examined. Part 1 r 8 defines “officer” in relation to a corporation as including “a director and person having (whether alone or with others) powers of management, direction or control of the corporation”. Even if such an officer with those qualifications could be specified, that officer could not be compelled to attend for examination. The obligation would be to produce documents as required by SCR Pt 3 r 1(2).
69 Thus the Court has no power to make an order in terms of Order 2 of the Further Amended Summons.
70 Order 3 in the Further Amended Summons is an order that the defendants produce “as on discovery” all documents relating to the “matter identified in Order 1 and 2”. For the reasons just stated such a form of “rolled up” order is inappropriate if not merely inelegant. It was argued however for the defendants that the process of discovery requires the person giving discovery to form a judgment about the relevance of the documents to the matters in issue in the proceedings. A matter is not in issue in a proceeding until the pleadings are closed. A court will depart from the general rule that discovery will not be given before the close of pleadings only in extreme cases (Latec Finance Pty Limited v Drury (1960) 77 WN (NSW) 674).
71 I do not agree with this submission. The rule itself bears the heading “Preliminary Discovery” (though this is not decisive). Importantly however, it requires the production of any document or thing in the relevant person or corporation’s possession “relating to the identity or description of the person concerned”. This circumscribes the exercise of “discovery” upon which the recipient of the court’s order has to embark. It, as-it-were, identifies the issue (analogous to that exposed by the closure of pleadings) to which the exercise of forming a judgment and the production of documents is directed. The purpose of Pt 3 is to provide a mechanism for the ascertainment of the “identity of a person” for the purposes of commencing proceedings. If, in all respects, a case is made out for the exercise of the court’s discretion under Pt 3, then there is no room for any suggestion as to the exercise being one to “fish”, the ambit and purpose of the discovery process being identified and limited.
72 It is desirable that a summons under Pt 3 be drawn with care and with the terms of Pt 3 clearly in mind. Further as I said in Blann (supra) and H & H Security Pty Limited & Anor v Toliopoulos (unreported, 17 May 1995), at some point there must be exposed the causes of action (the imputations) in respect of which the plaintiff in the Summons seeks to institute proceedings against the person sought to be identified upon orders being made and an examination or production of documents having taken place.
73 As I have said I am persuaded on the threshold ground and if necessary, upon the orthodox Cojuangco basis that the plaintiff’s Summons must be dismissed.
74 Pursuant to s 78B of the Judiciary Act 1903 notices were forwarded by the defendants to the Attorneys General for the Commonwealth and the States and Territories.
75 The essence of the defendants’ contentions is as follows:
76 That the defendants are entitled to have the Summons dismissed, or to be excused from complying with any orders made under it, to the extent that compliance would require the defendants to identify any source or sources of information and/or any document provided to him or it by, or which may identify any such source.
77 The judicial power exercised by the Supreme Court of NSW on the hearing of the Summons is subject to the implied constitutional freedom and/or limitations to the effect of the freedom or limitations referred to in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and Nationwide News Pty Limited v Wills (1992) 177 CLR 1.
78 The judicial power of the Supreme Court to make orders of the kind sought for oral examination and the production of documents is limited by reason that (a) those orders, if made, would not be necessary in the interests of justice, having regard to the defendants’ ability effectively to exercise the constitutional freedom of communication on government and political matters; (b) the existence of or exercise of power to make such orders would affect adversely the public interest in the free flow of information in that it would constitute a serious undermining of necessary quality of confidentiality which persons in the defendants’ position must be able to offer in order to ensure the free flow of information about government and political matters.
79 The orders sought were not necessarily in the interests of justice, having regard to the defendants’ sources’ (if any), ability effectively to exercise the constitutional freedom of communication on government and political matters.
80 Mr Sexton S.C. Solicitor General for NSW appeared to argue the validity of SCR Pt 3.
81 The defendants’ contentions (oral and written) may be summarised thus:
82 The reasoning in Cojuangco proceeds upon the footing that:
(a) the newspaper rule is nothing more than a rule of practice in defamation actions which gives rise to a discretion to refuse to order disclosure in interlocutory procedures even though it would be ordered at trial (356.1);
(b) it is not a rule of law or of evidence, rather it is a mere guide to inform the exercise of a judicial discretion (356.5);
(d) all that an applicant needs to show under Pt 3 r 1 is that the order sought was necessary in the interests of justice, that is, that making of the order was necessary to provide the applicant with an effective remedy in respect of the actionable wrong of which the applicant complains (357, 358-9).(c) the rule is not applied directly to an application under Pt 3 r 1 (ibid);
83 That reasoning is affected by the decision of the High Court in Lange to this extent:
84 As to (a): the Constitution defines an area of immunity which cannot be infringed, relevantly, by a law of the Commonwealth or a State - namely the immunity which protects “that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors” (560.5)
85 As to (b) the freedom is not absolute but is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. It is, however, a restriction on legislative power.
86 As to (c) the validity of the legislative provision in question is ascertained by asking: (i) does the law effectively burden the freedom either in its terms, operation or effect? (567). The law of defamation does (568), as does an attempt to circumvent the newspaper rule by seeking involuntary disclosure of a journalist’s sources (567). (ii) If so, is the law reasonably appropriate and adapted to serve a legitimate end, the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure for a referendum? (567). It will not be so if other, less drastic means are available to achieve the objective(s) (568).
87 As to (d) what must be shown is that Pt 3 r 1, as is sought to be applied in the instant Summons, is reasonably appropriate and adapted to the protection of reputation having regard to the requirement of freedom of communication about government and political matters required by the Constitution (568-9).
88 It is contended that it can be seen that in Cojuangco (High Court, supra, at 354), a mere rule of practice which was not a rule of law or of evidence was a discretionary factor to be taken into account in exercising the discretion under Pt 3 r 1. Now, it is argued, there is a constitutional “immunity” protecting the exercise of the freedom. The freedom is not some discretionary factor - it is the result of the highest law in the land - the Constitution - and it can invalidate Pt 3 r 1 or modify its operation.
89 Thus, it was submitted, that the Court is no longer balancing what is necessary in the interests of justice alone. Rather those interests, are to be weighed with the freedom which is structured, carefully, to provide that the effective remedy for publication of defamatory matter will be given where the publisher fails to act reasonably and without malice (572-4).
90 The defendants submit that the guiding principle as to the exercise of the discretion in Cojuangco may be reformulated in cases in which the constitutional freedom is at issue. That reformulation has been posited as “what an applicant must show is both that the order sought is necessary in the interests of justice and that the public interest in securing the trial of the applicant’s action is sufficiently important to displace the public interest in the free flow of information concerning government and political matters which the Constitution protects. As to the first limb of this test, the order sought will be necessary in the interests of justice where the making of the order is necessary to provide the applicant with an effective remedy in respect of the actionable wrong of which the applicant complains. However as to the second limb, the mere fact of the making of the order is necessary to provide the applicant with an effective remedy will not, without more, be sufficient to displace the public interest in the free flow of information which the Constitution protects.”
91 (This formulation I have extracted with slight re-wording form the full written submissions provided by the defendants).
92 As I understand it, this formulation would permit the survival of the rule (constitutionally) where the discretion for which rule provides is exercised in a manner which gives due, and it is said very considerable, weight to the constitutional freedom to discuss political and government matters because the rule will be “appropriate and adapted” and not invalidated by the constitutional immunity.
93 The Solicitor-General argued that it could not be suggested that the rule in its terms burdens freedom of communication (assuming the publications in this case related to government or political matters). So far as its operation or effect is concerned, no burden is imposed in circumstances where the discretion that is expressed in the rule is exercised in a context of a body of common law authority (including Cojuanco) and since 1997, legislation effectively requiring the interests of justice to be the criterion for its operation. The legislation referred to is the amendment to the Evidence Act 1995 now embodied in ss 126A to 126F under the heading “Professional Confidential Relationship Privilege”.
94 I at once state that the structure of the present Summons in no way lends itself to my pronouncing upon any matter of construction of this division of the Evidence Act 1995 which is concerned essentially with the exclusion of evidence of protected confidences. There is no evidence on the present application in respect of which this component of the Evidence Act 1995 presently has any relevance and it would be imprudent to seek to construe any of its provisions with a view to either holding or excluding the application of the protections provided by the Act to the relationship of journalist and that journalist’s source.
95 Be that as it may, it was argued by the Solicitor that both the newspaper rule and the Evidence Act 1995 require the Court to engage in a balancing exercise between the plaintiff’s right to pursue the action against an alleged tortfeasor and the protection of the source’s confidentiality. It was argued that the rule, when considered in its totality, does not impose any burden on freedom of communication in its operation or effect. Even if it were to be held to the contrary, the rule would be “a law reasonably appropriate and adapted to serve a legitimate end, the fulfilment of which is compatible with … the system of government prescribed by the Constitution” (Lange at 567).
96 It was submitted that it would be difficult to argue that a law that requires the disclosure of a defendant’s sources in limited circumstances - and only after the confidentiality of those sources has been weighed against the plaintiff’s capacity to obtain justice in the particular case (this is founded upon, inter alia, the operation of the Evidence Act 1995) - could be anything other than reasonably appropriate and adapted to serve a legitimate end compatible with the system of government prescribed by the Australian Constitution. This conforms with the view taken in Lange of the conceptual basis of the law of libel: “The purpose of the law of defamation is to strike a balance between the right to reputation and freedom of speech. It is not to be supposed that the protection of reputation is a purpose that is incompatible with the requirement of freedom of communication imposed by the Constitution. The protection of the reputation of those who take part in the government and political life of this country from false and defamatory statements is conducive to the public good. The constitutionally prescribed system of government does not require - to the contrary, it would be adversely affected by - an unqualified freedom to publish defamatory matter damaging the reputations of individuals involved in government or politics” (568).
97 Pertinently, the Solicitor noted that the defendants’ argument is equally applicable to the rules of evidence requiring a journalist called at the trial to disclose sources if disclosure be relevant to, for example, a defence relied upon under s 22 of the Defamation Act 1974 (but subject, according to the Solicitor-General, to s 126B of the Evidence Act 1995).
98 The submissions made by the Solicitor-General were adopted by the plaintiff.
99 I do not have to decide the issues raised in the submissions by the defendant and the Solicitor-General. Those issues could be profoundly significant.
100 Not only is there no necessity to decide those issues, I must say that even if there were, to do so would be extremely difficult. The reason for that is that the submissions were, in effect, made in the abstract. The only evidence on the Summons is made up of the three newspaper items.
101 There is no evidence as to the identity of the sources or of any quality in any relationship between those sources and the named defendants that would attract the notion of confidentiality and thus, the application of the reformulated discretionary considerations advanced for the defendants (or the Solicitor’s submissions on the Evidence Act).
102 The proclaimed constitutional protection of the freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors, clearly is a “structured” freedom which is enlivened in a context in a defamation action. It is enlivened, that is, provides the immunity, when the defendant proves the elements of the qualified privilege defence (the Lange defence) and defeats matters raised in defeasance of it. That enlivening or application of the proclaimed freedom and consequential immunity will be determined at the trial.
103 In the instant Summons there is arguably in my view, “no context” at all in which can be determined the application of that freedom and consequential immunity. It may well be however, that a context could be created by evidence that would expose a basis for the enlivening of the freedom and its immunity on the one hand or provide a basis for the application of the orthodox Cojuangco principle on the other, (leaving aside the Evidence Act considerations as advanced by the Solicitor-General).
104 All I can say in the “abstract,” is that the rule of Court on its face for the reasons advanced by the Solicitor-General, at least, could not or need not be struck down as being inconsistent with the implied constitutional freedom but rather could be understood to be (and this was common to the positions of the defendants and the Solicitor-General), a rule “appropriate and adapted”.
105 Further than that, really, I cannot proceed.
106 The plaintiff’s application has been essentially unmeritorious on the threshold basis. Its prosecution however inevitably led to the consideration of what I will describe as the Cojuangco and Lange components, both being anticipated in the plaintiff’s submissions. The plaintiff, as I have said, adopted the submissions for the Solicitor-General. I mention these factors as their totality has predisposed me to order that the plaintiff pay the costs of the defendants and the Solicitor-General.
107 The formal orders are:
2. The plaintiff is to pay the costs of the defendant and the Solicitor-General.
1. The Further Amended Summons is dismissed.
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