Re Pyne
[1996] QSC 128
•16 July 1996
IN THE SUPREME COURT
OF QUEENSLAND
OS No. 3665 of 1996
Brisbane Registry
Before the Hon. Mr Justice Shepherdson
[Re Pyne]
IN THE MATTER of the Rules of the
Supreme Court
-and-
IN THE MATTER of THOMAS ALFRED PYNE
JUDGMENT - SHEPHERDSON J. - CHAMBERS
Judgment delivered 16/07/1996
CATCHWORDS: EQUITY - Discovery before action - auxiliary jurisdiction - need to discover identity of maker and distributor of defamatory material. The principle in Norwich Pharmacal Co. v. Customs & Excise Commissioners [1974] A.C.133. Lord Reid applied. Re application of Cojuangco (1986) 4 N.S.W.L.R. 513 at 535: John Fairfax & Sons Limited and Another v. Cojuangco (1988) 165 C.L.R. p.346 referred to.
Whether respondent a "mere spectator".
Counsel:Applegarth for applicant
Dutney Q.C. for respondent, Bosanquet
Solicitors:MacDonnells from Cairns for applicant
Deacons, Graham & James for respondent
Hearing date: 16 May 1996
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane Registry OS No.3665 of 1996
Before the Hon. Mr Justice Shepherdson
[re. TA Pyne]
IN THE MATTER of the Rules of the
Supreme Court
-and-
IN THE MATTER of THOMAS ALFRED PYNE
JUDGMENT - SHEPHERDSON J. - CHAMBERS
Judgment delivered 16 July 1996
The abovenamed Thomas Alfred Pyne has sought the following orders:-
That Peter Bosanquet produce to the Court on a date to be fixed all memoranda, records, notes, diaries, correspondence, papers and other documents, including documents which are stored on magnetic or electronic storage medium, which relate to or record:
(a)enquiries made by him and information obtained by him concerning:
(i)the sale of property situated at 45 Malabar Street, Edmonton, also described as 45 Malabar Street, Centenary Heights, and more properly described as Lot 174 on Registered Plan 840932, Certificate of Title No. N1489, Folio 93, in the Parish of Grafton (hereinafter referred to as "the property");
(ii)sales record reports in relation to vendors or purchasers named Pyne;
(iii)the identity of persons providing information to him in relation to the property or in relation to sales concerning vendors or purchasers named Pyne;
(iv)the identity of persons to whom he provided information in relation to the property or in relation to sales concerning vendors or purchasers named Pyne.
That Peter Bosanquet attend before the Court on a date to be fixed to be examined in relation to:
(a)the identity of persons from whom he obtained information in relation to the property or in relation to property sales concerning vendors or purchasers named Pyne;
(b)the source of information disclosed by him at a press conference held on or about 19th April, 1996;
(c)the identity of persons to whom he has provided information in relation to the property;
(d)the identity of persons to whom he has provided documents in relation to the property;
The application is opposed.
The applicant who is the Mayor of Cairns, alleges that he has been defamed by a circular, brochure or leaflet which, on the evidence read before me, was distributed to the general public in Cairns and certainly on 27 April 1996. This circular accused the applicant of corruption. The claim of corruption appearing in the circular was based on assertions that the applicant bought a house from his son and daughter-in-law for $91,000 and then sold it to the Government 6 weeks later for $175,000 making a profit of $84,000. The circular incorporated information, apparently obtained by the Lands Department and sourced by RP Data Pty Ltd.
In fact, on the material read before me, the applicant did not buy a house from his son and daughter-in-law for $91,000 - he purchased from his son and daughter-in-law for $91,000 a one-half interest in that property which was a residential property situated at 45 Malabar Street, Edmonton and did so to assist his son, who is disabled, with his university studies. Although not expressly stated it appears that the applicant already owned the other half share in the property. He later sold the property to the Queensland Housing Commission for a price of $175,000. It appears that the property was one especially suitable for use by disabled persons such as those suffering quadriplegia.
It appears that in fact the applicant made a loss on the sale of the property. An affidavit from an estate agent shows that the sale at $175,000 was negotiated through an estate agent and was an arms length transaction.
The applicant has endeavoured, without success, to ascertain the identity or identities of the person or persons responsible for publishing the defamatory circular.
The evidence before me discloses that the respondent Peter Bosanquet:-
(a)on 19 April 1996 in Cairns attended a press conference held by a former Mulgrave Shire Councillor named Parisi and that at that press conference said that he had information in relation to a sale of land involving the applicant, the applicant's son and the State Government.
(b)said that the information which he had was obtainable from the Lands Department.
(c)on 28 April 1996 made statements which were reported in the Cairns Post newspaper published on 29 January 1996, in which he denied any involvement with a brochure but admitted that he had distributed information obtainable from the Lands Department about the transaction.
The brochure or leaflet distributed on 27 April 1996 contained Lands Department information about land sales which involved the applicant as well as other persons named Pyne.
On 29 April 1996, solicitors acting for the applicant wrote to the respondent a letter concerning the defamatory material. That letter reads:-"We act on behalf of Tom Pyne and his son Robert Pyne.
We enclose a copy of a circular which was placed on numerous cars at the Westcourt Shopping Centre.
We understand from the article in this morning's Cairns Post that you handed out the material concerning information about our client's land deals at a recent press conference.
It would appear that you may have been materially mislead (sic) by that material which has been used to defame our clients. In the circumstances we ask that you assist us by advising us:
1.Where you obtained that information.
2.Details of who printed it.
3.Details of who distributed it.
We would appreciate your urgent response."
On 2 May 1996 the applicant's solicitors received a facsimile letter from Deacons Graham and James, solicitors of Brisbane which relevantly read:-
"We have taken our client's instructions in relation to the material which you sent to him yesterday.
Our client denies having any involvement in the authorship, printing and distribution of the circular of which your client complains. Further, our client has no information which identifies the person who produced or distributed the circular.
Concerning the matters about which you have asked for our clients assistance, we are instructed to respond as follows:
1.The information concerning land dealings, which you say form part of the circular in question, were sent to him anonymously by post. Our client is aware that a 4 page document containing similar information was widely in circulation in the Cairns district area a number of weeks ago.
2.Our client has no knowledge of the identity of the person who printed the information.
3.Our client has no knowledge of the identity of the person who distributed the information.
We consider that our client's response alleviates the need to pursue the application you have foreshadowed, if you consider otherwise please tell us immediately."
On 3 May 1996 the applicant's solicitors sent by facsimile addressed to Deacons Graham & James a letter which relevantly reads:-
"As you may be aware, our client's application was filed yesterday and (subject to confirmation by our town agents) we understand it is returnable on 16 May 1996.
Our client is prepared to consider the question of further pursuing the application upon receipt of an affidavit by your client in which he swears:
(a)to his instructions to you on the matter.
(b)whether he still has the circular and the envelope in which it was posted and if not, what has become of it.
(c)whether he has a copy of the "4 page document containing similar information".
(d)how he became aware that the 4 page document was widely in circulation in the Cairns area.
(e)who was causing the 4 page document to be widely circulated in the Cairns area.
(f)any other matters which will assist our client in determining who distributed the document."
The respondent did not swear any affidavit which was read before me.
The present application is made to this Court's auxiliary jurisdiction in equity. The applicant's counsel Mr Applegarth relies on the principle as stated by Lord Reid in Norwich Pharmacal Co. v. Customs and Excise Commissioners (1974) AC 133 at p.175 where his Lordship after discussing authorities said:-"[The authorities] seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers."
His Lordship went on to say:-
"I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in writing the wrong if he unwittingly facilitated its perpetration."
The above principle was subsequently applied by the House of Lords in X Ltd
v. Morgan-Grampian (Publishers) Ltd (1991) 1 AC 1.
Mr Dutney QC who appeared for the respondent submitted that the respondent here was a "mere witness", that the response contained in the solicitor's facsimile letter of 2 May 1996 was direct and full and that the application should be dismissed. Mr Dutney concedes that if I concluded that his client was not a "mere witness" then I have a discretion as to whether or not I should make the first order sought. He argues that there is no case which would justify an order being made in terms of para.2 of the application.
Both parties referred me to a decision of Mr Justice Hunt in re Application of Cojuangco (1986) 4 NSWLR 513, where His Honour ordered preliminary discovery on an application under the relevant New South Wales Supreme Court Rule where a defamation suit was to be brought against a newspaper. The rule considered in that case does not apply in Queensland. However, as Hunt J. recognised (at p.521), the Norwich Pharmacal type of case was sufficient to justify preliminary discovery if the applicant has a cause of action (whether or not he intends to pursue it) and that discovery is necessary to enable justice to be done.
The decision of Hunt J. in Cojuangco went on appeal to the New South Wales Court of Appeal and then to the High Court of Australia. The decision in the High Court John Fairfax & Sons Ltd v. Cojuangco (165 CLR 346) was restricted to the relevant Rule of the New South Wales Supreme Court, the "newspaper rule".
However, the High Court in its judgment did consider matters which a judge exercising the judicial discretion conferred by the newspaper rule was entitled to consider. In so doing it emphasised the need of an applicant seeking relief under that rule to show 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" (at p.357).
The Court later considered a submission that it is inappropriate for a judge in deciding an application for preliminary discovery to speculate on the prospects of a successful defence under s.22 of the Defamation Act 1974 (NSW) particularly in the absence of evidence going to the issues raised by such a defence. The Court said (at p.357):-"The short answer to this submission is that it is necessary to consider whether the applicant is left without an effective remedy if an order is not made and that the judge is not called upon to decide whether the statutory defence will succeed; it is for him to form a conclusion that the defence might well succeed on the materials before him."
The above matters appearing in the High Court's reasons are relevant to the present matter.
And so, in both the House of Lords and the High Court of Australia, the interests of justice are relevant to the exercise of the judicial discretion and in considering the interests of justice the judge must consider whether the applicant is left without an effective remedy, if the order sought is not made.
I have concluded that the non-existence in the rules of this Court of a rule comparable to that referred to in Cojuangco has no bearing on the outcome of this application. This Court is empowered, in the exercise of its equitable auxiliary jurisdiction, to make the order sought if the respondent is not a "mere witness" and this Court considers the interests of justice require the making of the order.
In the Norwich Pharmacal case Lord Reid had this to say about the "mere witness" rule (at pp.173-4):-
"... it is argued for the respondents that it was an indispensable condition for the ordering of discovery that the person seeking discovery should have a cause of action against the person from whom it was sought. Otherwise it was said the case would come within the "mere witness" rule.
I think there has been a good deal of misunderstanding about this rule. It has been clear at least since the time of Lord Hardwicke that information cannot be obtained by discovery from a person who will in due course be compellable to give that information either by oral testimony as a witness or on a subpoena duces tecum. Whether the reasons justifying that rule are good or bad it is much too late to inquire: the rule is settled. But the foundation of the rule is the assumption that eventually the testimony will be available either in an action already in progress or in an action which will be brought later. It appears to me to have no application to a case like the present case. Here if the information in the possession of the respondents cannot be made available by discovery now, no action can ever be begun because the appellants do not know who are the wrongdoers who have infringed their patent. So the appellants can never get the information.
To apply the "mere witness" rule to a case like this would be to divorce it entirely from its proper sphere. Its purpose is not to prevent but to postpone the recovery of the information sought...
But that does not mean as the appellants contend that discovery will be ordered against anyone who can give information as to the identity of a wrongdoer. There is absolutely no authority for that. A person injured in a road accident might know that a bystander had taken the number of a car which ran him down and have no other means of tracing the driver. Or a person might know that a particular person is in possession of a libellous letter which he has good reason to believe defames him but the author of which he cannot discover. I am satisfied that it would not be proper in either case to order discovery in order that the person who has suffered damage might be able to find and sue the wrongdoer. Neither authority, principle nor public policy would justify that.
So discovery to find the identity of a wrongdoer is available against anyone against whom the plaintiff has a cause of action in relation to the same wrong. It is not available against a person who has no other connection with the wrong than that he was a spectator or has some document relating to it in his possession."
It seems to me that in this case, success or failure of the application boils down to whether or not I take the view that the respondent was in effect a spectator and has no other connection with the defamation and its publication.
On the material before me I have concluded that he was neither a spectator nor a "mere witness". On two occasions i.e. on 19 April 1996 and 28 April 1996 he has made statements which are relevant to the defamatory material which has been published. He has been asked to provide an affidavit and has not done so. More particularly he has neither confirmed nor denied that he had handed out material about the land transaction at the press conference on 19 April 1996, and he has not provided any information concerning the whereabouts of the circular which he told his solicitors had been sent to him "anonymously by post" and more particularly did not disclose whether he had retained that document or passed it on and to whom.
In my view, had the respondent been a "mere spectator" or a "mere witness" he would have had nothing to fear from swearing the affidavit which was requested some 12 or 13 days before the actual hearing of the application.
I have concluded that in this case the interests of justice require me to make the first order sought. I decline to make now the second order sought in the application. I propose to adjourn to a date to be fixed the application for the second order.
On the matter of costs, Mr Dutney QC seeks an order that the applicant pay his clients costs. Mr Applegarth for the applicant has submitted that the respondent should be ordered to pay the costs.
On the material before me I am satisfied that the respondent has been "mixed up" in the tortious acts of the person or persons who prepared and published the defamatory matter. The present orders are made on the basis that he is so mixed up through no fault of his own. The one matter which has concerned me is what in my view is a reluctance on the part of the respondent to swear the requested affidavit. My mind has wavered on the question of costs but at the end of the day, as the principle on which the applicant relies is one in which the respondent is treated as a person who has become mixed up in the tortious acts of another or others and is liable to fulfil the duty to assist the wronged person, I am not justified in declining to order the applicant to pay the costs of the respondent.
In summary then the orders I make are these:-
I order as per paragraph 1 of the application and I fix the time, date and place for performance of the acts required by that order as 9.30 am on 23 July 1996 at the office of the District Registrar at Cairns of the Supreme Court of Queensland.
I adjourn to a date to be fixed to be brought on on at least 3 clear days written notice to the solicitors for the respondent the application for the second order sought.
I order the applicant to pay the respondent's costs of an incidental to this application to and including 23 July 1996, to be taxed.
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