Noble v Phillips

[2017] NSWSC 121

Supreme Court

New South Wales

Medium Neutral Citation:	Noble v Phillips [2017] NSWSC 121
Hearing dates:	17 February 2017
Decision date:	17 February 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Plaintiff granted leave to interrogate the 1st and 2nd defendants in the following terms: “Did you communicate [X] or words to that effect; if so what were the exact words communicated and in what form?”; as between the plaintiff and the 1st and 2nd defendants, costs of today’s argument be each party’s costs in the cause; as between the plaintiff and the 3rd and 4th defendants, plaintiff to pay those parties’ costs of today’s argument; parties directed to bring in short minutes of orders for the future conduct of the proceedings in accordance with the Practice Note
Catchwords:	DEFAMATION – slander – newspaper article attributing certain remarks to defendant – publication of attributed words admitted in part – consideration of appropriateness of granting leave to plaintiff at an early stage of the proceedings to interrogate that defendant to determine the precise words said
Legislation Cited:	Civil Procedure Act 2005 (NSW), pt 6 Defamation List Practice Note SC CL 4, cl 13(b)
Cases Cited:	Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
Category:	Procedural and other rulings
Parties:	Peter Bruce Noble (plaintiff) Stephen Snowden Phillips (first defendant) Biolink Pty Ltd (second defendant) Michael Slezak (third defendant) GNM Australia Pty Limited (fourth defendant)
Representation:	Counsel: B Connell (plaintiff) M Richardson (first and second defendants) R Potter (third and fourth defendants)   Solicitors: Heydons Lawyers & Attorneys (plaintiff) Kennedys (Australasia) Pty Ltd (first and second defendants) Baker & McKenzie (third and fourth defendants)
File Number(s):	2016/381478

JUDGMENT

1. HER HONOUR: These are proceedings for defamation commenced by Mr Peter Noble, the promoter of the music festival known as “Bluesfest” held annually in the area of Byron Bay in the State of New South Wales.

2. The proceedings arise out of the publication of an article in The Guardian which, in short, accuses the festival of killing the local koala population. The article appears under the by-line of Mr Michael Slezak, the third defendant to the proceedings. The article attributes much of its accusation concerning the threat to the koala population to Dr Stephen Phillips of Biolink Ecological Consultants. Dr Phillips and Biolink are the first and second defendants respectively. The fourth defendant is the proprietor of The Guardian.

3. The article attributes specific remarks to Dr Phillips in some parts but also makes contentions which might be thought to be drawn from his words but which are not expressly attributed to him as quotes. Faced with an article in those terms, the plaintiff has pleaded, as the first matter complained of, a publication by way of slander, evidently prepared by drawing from the printed article each of the remarks the pleader infers must have been communicated by Dr Phillips to the journalist.

4. In correspondence between the parties both before and after the commencement of the proceedings, a point was taken by Dr Phillips as to the basis on which it was sought to hold him responsible for the remarks attributed to him by the plaintiff. The exchange was advanced by pre-empting Dr Phillips' obligation to comply with cl 13(b) of the Defamation List Practice Note SC CL 4, which requires a defendant at the first listing of proceedings for defamation to inform the court whether publication is admitted. Dr Phillips admitted saying the words which appear at paras 5 and 8 of Schedule A to the statement of claim but nothing else.

5. The admitted paragraphs are:

"What used to be a very robust population is now no more" and

"These sorts of actions are very costly for a marsupial like a koala".

6. It is plain enough that those words, shorn of any context, do not comprise the whole of the relevant exchange between Dr Phillips and the journalist. If nothing else, there must have been some reference point for the phrase “these sorts of actions” (whether in the form of a question by the journalist or additional words said by Dr Phillips).

7. Dr Phillips did also inform the plaintiff in correspondence that he is the author of an article entitled "Aversive behaviour by koalas (Phascolarctos cinereus) during the course of a music festival in northern New South Wales, Australia" published in Australian Mammalogy on 15 January 2016.

8. In the circumstances, the plaintiff seeks to interrogate the first and second defendants (Dr Phillips and his company) and, separately, the third and fourth defendants (the proprietor of The Guardian and its journalist) with a view to ascertaining the precise terms of the alleged slander.

9. The form of interrogatory propounded for that purpose is, with great respect to its author, misconceived in the circumstances. It is the form of interrogatory ordinarily administered in circumstances where a defendant has pleaded a defence of qualified privilege; it is directed to ascertaining the information held by the defendant prior to publication and the quality of that information.

10. There is, however, authority to support the proposition that a plaintiff in the position of Mr Noble can interrogate to a limited extent to ascertain the terms of a slander, provided there is a proper basis for apprehending that there is a viable cause of action and the interrogation is not in the nature of a fishing expedition.    

11. I was first persuaded to allow a plaintiff to administer an interrogatory in those terms in Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101. The terms of the interrogatory I allowed in that case (set out at [29] of the judgment) were as follows: "did you say [X] or words to that effect and if so what were the exact words spoken?" Surprisingly (at least to me), it was the plaintiff rather than the defendant who appealed against that determination. The Court of Appeal dismissed that aspect of the appeal in terms I would understand as broadly approving the course I took: Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [89] and [95].

12. Mr Richardson, who appears for Dr Phillips, submitted that this is not a case like Dank, the first defendant having responded appropriately, in accordance with the expectation communicated by the Practice Note, admitting those parts of the slander as pleaded which Dr Phillips admits and otherwise identifying a potential source of further material so that the proceedings may go forward in the ordinary way.

13. I acknowledge there is some force in the submissions put by Mr Richardson; certainly, Dr Phillips responded cooperatively to the proposed claim against him. The difficulty as I see it is that if the proceedings proceed by reference to the current schedule to the pleading, the plaintiff will ultimately be entitled to interrogate Dr Phillips as to the terms of his conversation with the journalist. It may at least comfortably be concluded that there was such a conversation. The result may be that proceedings go off on a tangent by reference to what is presently a conversation in uncertain terms so far as the plaintiff is concerned. That, in turn, may generate unnecessary legal costs due to interlocutory steps proceeding on a misapprehension which at a later stage in the proceedings will be clarified.

14. It is not a situation where the plaintiff is speculating as to whether he has a cause of action at all. In my view, having regard to my obligations under pt 6 of the Civil Procedure Act 2005 (NSW), it is appropriate to allow an interrogatory in the terms I allowed in Dank in the present case, but only as against the first and second defendants.

15. Mr Potter, who appears for the proprietor of the The Guardian and its journalist, has submitted that this interrogatory should not be allowed as against his clients, since there is no issue in the proceedings as to publication by them. They admit publication of the article. I accept that submission.

16. For those reasons, the order I make is to grant leave to the plaintiff to interrogate the first and second defendants in the following terms:

“Did you communicate [X] or words to that effect and if so what were the exact words communicated and in what form?”

17. As between the plaintiff and the first and second defendants, I order that the costs of the arguments this morning be each party's costs in the cause.

18. As to the argument between the plaintiff and the third and fourth defendants, I order the plaintiff to pay the third and fourth defendants' costs of the argument.

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Decision last updated: 09 March 2017