S, D R v Channel Seven Adelaide Pty Limited and Australian Broadcasting Commission (No 2)
[2007] SASC 30
•6 February 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
S, D R v CHANNEL SEVEN ADELAIDE PTY LIMITED AND AUSTRALIAN BROADCASTING COMMISSION (NO 2)
[2007] SASC 30
Reasons of Judge Lunn a Master of the Supreme Court
6 February 2007
PROCEDURE
Notice to admit - R 54.02 - objections to answers based on irrelevance - when to be determined on an interlocutory basis - objections for irrelevance struck out - duty of responding party to make inquiries of others in order to answer - held not obliged to answer other than from inquiries of its servants or agents.
S, D R v CHANNEL SEVEN ADELAIDE PTY LIMITED AND AUSTRALIAN BROADCASTING COMMISSION (NO 2)
[2007] SASC 30S, D R –v- CHANNEL SEVEN ADELAIDE PTY LTD & ANOR (No 2)
JUDGE LUNN: In this action the plaintiff has sued the second defendant, the Australian Broadcasting Corporation (“the ABC”), for damages for defamation. In its defence the ABC has pleaded privilege and fair and accurate reports of judicial proceedings under the repealed s 6 of the Civil Liability Act 1936. In the particulars of this plea the ABC has pleaded hearings in the Adelaide District Court on 16 and 19 May 2004 before Judge Bishop. In its amended reply the plaintiff has pleaded in answer to this claim for privilege that the reports were not fair and accurate and the ABC was actuated by malice.
On 10 August 2006 the plaintiff filed a notice to admit under R 54.01. On 10 January 2007 the ABC filed an amended answer to that notice to admit (“the answers”). By a notice for specific directions of 6 October 2006 the plaintiff has sought to strike out various paragraphs of the answers. (After the filing of this application the ABC was given an opportunity to amend its answers to overcome some of the matters raised by the plaintiff and the application was argued on the basis of the amended answers filed on 10 January 2007). In dealing with the application I have grouped together various of the answers which are under challenge where they involve common points.
OBJECTIONS BASED ON IRRELEVANCE
In Panoz Motorsport Australia Pty Ltd v Olsen 16 March 2005, [2005] SASC 109, unreported, Debelle J held that the Court should not go behind an objection of irrelevancy except, and perhaps, in clear cases. The determination of relevance is usually for the trial Judge who will be in a better position to determine it. However, an interlocutory determination of relevance under R 54 does not create an issue estoppel, and does not bind the trial Judge: Santos v Delhi Petroleum Pty Ltd (2002) 225 LSJS 1. Some discretion can be exercised in an interlocutory application as to what questions of relevance should be left to the trial Judge and what should be determined at that stage so that if there is a ruling of relevance both at the interlocutory stage and at the trial the conduct of the trial is benefited by either an admission or a definition of the dispute. (If there is an interlocutory ruling of relevance, but the trial Judge rules to the contrary, the party unnecessarily answering the request to admit can then be compensated in costs).
In order to rule on what is relevant here it is necessary to consider some parts of the pleading of the cases of the parties. On 2 March 2004 the plaintiff was the subject of an application brought by the South Australian Police in the Adelaide Magistrates Court under the Criminal Law (Forensic Procedure) Act 1998 (“the Forensic Act”) to obtain his finger and palm prints. Tony Hull and Thea Williams, who were employed by the ABC as reporters, were present at that hearing and became aware that the plaintiff had been alleged to be a suspect in a murder investigation. S 48 of that Act prohibits the publication of the name of any person who is subject to such proceedings. Later that day the ABC broadcast a report of these proceedings but without naming the plaintiff.
On 16 May 2004 Patricia Draper made an urgent application to the District Court to injunct the first defendant, Channel Seven, from broadcasting a programme containing allegations about her association with the plaintiff. The application was opposed. Counsel for the plaintiff here was allowed to appear by leave. His Honour Judge Bishop granted the injunction until further order, but gave liberty to apply on short notice. No representative of the ABC was present at that hearing. There was apparently no transcript taken of it.
On Wednesday 19 May there was a further urgent hearing before Judge Bishop at which, inter alia, Channel Seven sought to discharge the injunction made on 16 May. That hearing commenced at 12.11 pm and adjourned at 1.06 pm on the basis that it would resume later that afternoon after Judge Bishop had dealt with other matters. The publications by the ABC, which are the subject of this action, occurred that afternoon prior to the hearing resuming before Judge Bishop. The hearing recommenced at 4.41 pm and concluded at 6.14 pm when Judge Bishop made orders continuing his previous injunction and suppressing any reference to the plaintiff being a murder suspect.
The plaintiff’s amended reply pleads that the publications by the ABC omitted a number of matters which meant they were not a fair and accurate reports of the judicial proceedings before Judge Bishop on 16 and 19 May. The reply also alleges malice on the basis that the publications by the ABC were for improper purposes, which were formed by its employee, Tony Hull, to defeat, or possibly defeat, the protection provided to the plaintiff by the Forensic Act and to defeat, or possibly defeat, the purpose of the scheduled continued hearing before Judge Bishop later on 19 May to have a suppression order made about matters contained in the publications.
Paragraphs 17 and 19
These paragraphs seek admissions that at the hearing on 2 March 2004 Tony Hull spoke to the Magistrate and asserted that s 69A (of the Evidence Act) did not provide a blanket suppression of the proceedings and that Tony Hull knew that s 48 of the Forensic Act applied to publications concerning the plaintiff. Objections were taken to each that they were irrelevant.
What Tony Hull said, did and believed at the hearing 2 March 2004 is sufficiently logically probative of the malice pleaded against the ABC to be relevant. Certainly some of what occurred on 2 March 2004 is relevant, and it is likely the trial Judge would allow evidence to be led of all that occurred at that hearing as being indirectly relevant in order to give the context in which the directly relevant matters were set. Counsel for the ABC submitted that paragraph 19 was too wide in seeking that any admission that the whole of s 48 of the Forensic Act applied to publications concerning the plaintiff, and said it should be limited to the proceedings of 2 March 2004. However, there was reference to the proceedings on 2 March 2004 in the subsequent hearings before Judge Bishop and “publications” would properly encompass the references to the proceedings under that Act in the hearings before Judge Bishop.
Paragraphs 27-47.
These paragraphs requested the admission of various facts being alleged occurrences at the hearing on 16 May 2004. In each case part of the objection taken by the ABC was it “does not admit this fact on the basis that it is irrelevant to any issue on the pleadings as between the plaintiff and the 2nd defendant”.
In paragraph 8 of its defence the ABC pleads that the words were published on the occasion of privilege and expressly pleads the hearing on 16 May without any limitation. That in itself makes all of what occurred at that hearing directly relevant. The plaintiff has pleaded in his amended reply a number of things which occurred at the hearing on 16 May as matters which make the report of the hearing other than fair and accurate and as a part of the chain of events giving rise to the alleged malice. Insofar as what is asked in paragraphs 24-47 is not directly relevant to these issues, it is likely to be admitted in evidence as either indirectly relevant or to give a context to the directly relevant matters.
Accordingly, I strike out all the objections taken for irrelevance. (Paragraph 47 seeks an admission that the settled order filed with the Court was the document which is annexed and marked “E”. Paragraph 70(g) of the Notice seeks an admission of a document being the Order of 19 May 2004, a copy of which was annexed and marked “G”. As far as I can see the documents annexed as “E” and “G” are identical. Presumably the admission of “G” is sufficient for the plaintiff’s purposes, and is unaffected by the non-admission of “E”.)
OBJECTIONS BASED ON FAILURE TO TAKE REASONABLE STEPS TO ASCERTAIN FACTS.
The paragraphs dealt with under this heading turn on the extent to which the ABC was required to make enquiries of others, and to act upon what it was told, in answering the requests to admit facts.
None of the decided cases on R 54.02 address this issue in any detail. In Rak v Coles Myer Ltd (1996) 68 SASR 271 at 281-2, Lander J said:
It may be that those reasons are that the defendant was not present at the time of any conversation between the plaintiff and his mother and is therefore not in a position to admit the truth of the assertion made. I think it is not sufficient to simply not admit the fact on the grounds that the party does not know because that does not disclose in detail the reasons why the admission cannot be made. I think however it is sufficient to disclose why it is that a fact is denied by disclosing that the party simply was not present at the conversation and has no other way of knowing whether the conversation took place.
Also at 282-3 he said:
Moreover, the reason ‘ the defendant has no direct knowledge of the alleged occurrence ‘ cannot, for the reasons I have already given, be a sufficient reason for not making the admission. It would have to be taken, however, to be the only reason in the absence of any other reasons being given …..
In Panoz Motorsport Australia Pty Ltd v Olsen above at [17] Debelle said:
….. asks whether a document ….. was prepared by the South Australian Tourism Commission ….. this question has been answered, but with a denial, which reads:
‘Denied on the ground that, save to say that the document was prepared on the date after ……, the date on which the document was prepared is not known’.
In my view the answer is adequate. The plaintiff must accept the defendant’s answer that they do not know when the document was prepared.
(It does not appear that South Australian Tourism Commission was a servant or agent of the defendant). In Hydron Pty Ltd v Harous (2005) 238 LSJS 413 at 415 Besanko J said:
It seems to me that the rule would be easily circumvented if a responding party is able to deny a fact and to say that he does so simply on the basis that he does not know the fact. At the same time, I do not think that a party is bound to admit a fact unless he is able to state that fact is wrong. It is proper for a party to deny a fact on the basis that he does not know whether the fact is true. Take an example given by Lander J in Rak v Coles Myer Ltd (first quote above), he may do so because he was not present when the conversation took place. In my opinion, to give proper affect to the Rule and the words “in detail” a responding party needs to state reasons why he does not know the fact.
There is also some analogy with the authorities on what inquiries are required from parties in answering interrogatories. They are required to make inquiries from their servants or agents: Hawkes v Schubach 1953 VLR 468, and also from former servants or agents: Corporation of Catholic of Archdiocese of Brisbane v Discovery Bay Developments Pty Ltd [1995] 2 Qd R 121. However, parties have not been required to answer interrogatories from inquiries made from persons other than servants and agents. Such persons may not necessarily be relied upon to tell them the whole truth. Thus under R 54.02 parties should not be required to answer requests from inquiries made from persons who owe no duty to them to inform them of the whole truth.
Paragraphs 13 and 26.
These sought admissions that the plaintiff’s identity as a murder suspect had not been published in the media at various times. The objection to answer both was “This is an improper request. The request seeks to prove a negative and an answer to the request is dependent upon the conduct of others including unascertainable parties”. The plaintiff’s counsel contended that the ABC should have made inquiries of Tony Hull and others of its employees who would have been expected to know what previous publicity there had been. If it had been published, it presumably would have been of considerable interest to reporters such as Tony Hull. He also submitted that the defendant could have obtained reports from professional media survey organisations which would have dealt with the issue.
The plaintiff made this negative contention an issue by pleading it. It is not that the ABC has pleaded some other publication of the defamation in mitigation of damage or the like. If the ABC was intending to lead evidence at the trial of some other publication on the topic, it would have been obliged under R 46A.05(2)(b) and (c) to have pleaded such a publication, but it has not done so. Even if the ABC had made inquiries of its employees, it could not be sure that there had not been some other publication of which its employees were not aware. Obtaining a report from a media survey organisation is the equivalent of making inquiries of non parties which the ABC was not required to do. Rather, if the negative contention is to be proved by media survey reports, it is for the plaintiff to obtain the reports as the onus of proof is on him. He could then seek the admission of such reports as document under R 54.02. The ABC would then either have to admit them or to state its reasons for its objection to their admission.
Paragraphs 35-40 and 42-46.
These paragraphs seek admissions relating to what occurred at the hearing before Judge Bishop on 16 May 2004 and of documents which were produced by persons present at that hearing. To each of these paragraphs the ABC has taken an objection “Without admitting the request is a proper request the defendant says that it was not represented at the hearing and has no knowledge of the fact”. (The first part of this objection “Without admitting the request is a proper request” will be dealt with later).
The plaintiff contends that the objection is an insufficient reason under R54.02 because the ABC has not stated that it has no means of knowing whether the asserted facts are true. None of the decided cases on R 54.02 have held that an objection has to go as far as saying that the party has no means of knowing the truth of the fact asserted. Parties should not be required to disclose what inquiries they have made and what general belief they have on the topic. It is for the party seeking the admission to show that the objection is not taken bona fide, and it is not for the party taking the objection to establish its own bona fides except to the extent of refuting any contrary evidence on the point from the other party.
Paragraphs 64.12-64.20 and 65.
These paragraphs seek admissions about what Tony Hull heard at the hearing before Judge Bishop on 19 May of what was said by Judge Bishop and counsel for the plaintiff. To each paragraph the ABC has taken the objection “Denies this fact as (Tony) Hull was not present for the entirety of the second hearing and does not recall hearing and listening to the words” in question.
I do not accept the plaintiff’s submission that this form of objection is equivocal and evasive. The crux of the objection is that Tony Hull did not recall hearing and listening to the words in question. Whether his lack of recall is as a result of not being present when the words were said or because he no longer has a recollection of what was said when he was present does not affect the substance of the objection. The requests require the admission of precise words used by the Judge and counsel. It is not merely a request about the use of words to that effect. It is not surprising that sometime after the hearing on 19 May 2004 anyone present could not recall the precise words said by anyone at the hearing. It is a proper reason for objection.
The plaintiff’s counsel submitted that the objection was insufficient in that the ABC had not said that it had no means of ascertaining the truth of the facts asserted. For the reasons given above I do not accept this submission.
Annexure “F” of the notice to admit is a transcript of the proceedings before Judge Bishop on 19 May prepared by the Court Reporters. Although I have not checked it in detail, it appears that the requests about what was said at that hearing in paras 64.12-64.20 and 65 are taken verbatim from this transcript. At para 70(f) of the answers to the notice to admit the ABC has admitted this transcript document. It has not sought to plead a rejoinder in answer to the plaintiff’s amended reply that anything else was said at this hearing which is relevant to a fair and accurate report or to malice. Thus, it would seem that the plaintiff can tender at the trial the transcript as evidence of what was said by Judge Bishop and his counsel on 19 May. Whether such statements were heard by Tony Hull is in dispute and will need to be proved by evidence at the trial.
Accordingly, on this ground I do not order further answers to paragraphs 13 and 26, 35-40, 42-46, 64.12-64.20 and 65 or order any further answers in respect of them.
OBJECTIONS FOR EQUIVOCAL AND OTHERWISE IMPERMISSIBLE ANSWERS
Paragraphs 18 and 27-47.
Each of the answers to these paragraphs is prefaced by “Without admitting the request is a proper request”. A party can make an admission of a relevant fact at any time. It does not have to be in a pleading or in response to a request to admit. In response to a request to admit under R 54.01 a party either makes an admission or it does not: it cannot qualify the effect of the admission. (It can make a partial admission, but then what is admitted is fully admitted and the balance is not admitted at all). If the request for an admission is improper, the ABC could have refused to answer on that basis or have applied to have that part of the request to admit struck out. However, if it chooses to waive any impropriety in the request, and to respond to the request, the effect of its response is in no way qualified by a reference to the impropriety of the request. Accordingly, the words “Without admitting the request is a proper request” serve no proper purpose, are mischievous and should be struck out.
Paragraphs 27-34.
These paragraphs request admissions about occurrences at the hearing on 16 May before Judge Bishop. In each of the answers the ABC said “The Defendant says that the record of the proceedings in this action in Supreme Court action no 543 of 2004 discloses that this is a fact with which the defendant does not take issue with (sic)”.
Action 543/04 is this Supreme Court action. I put to counsel for the ABC that in respect of what occurred in the District Court it was nonsensical to refer to the record of the Supreme Court. I believe he conceded that the answer should have referred to the record of the District Court in its action 792/04.
Admissions in response to an R 54.01 notice are to be explicit and direct, and are not to be couched in terms which make it unclear as to what has been admitted, and whether it is a full admission: Thomson Brindal Ltd v McLachlan (2000) 207 LSJS at 104; Hydron Pty Ltd v Harris above at [20]. What is stated in these answers is not sufficient to be an admission. Therefore, it is to be treated as an non-admission of the request. However, as the non-admission does not state the reasons why the admission cannot be made in compliance with R54.02(1), there is a deemed admission under that subrule. As the plaintiff has sought relief under R 54.02(2) in respect of these answers they are to be struck out.
I infer that what the ABC was attempting to do by these answers was to say that the facts in question would be established by the record of the proceedings in the District Court, which presumably means the transcript which is the exhibit “F” to the notice to admit. If the ABC accepts the accuracy of this transcript, then this would be a proper basis for it to admit the facts in these paragraphs. If it does not accept the accuracy of the transcript in answering any of these requests, then under R 54.02(1)(b) it would need to set out its reasons why it does not accept its accuracy. As it has admitted the exhibit “F” I do understand what is the issue on these paragraphs.
ORDERS:
I have today made the following orders on the plaintiff’s application of 6 October 2006:
1The answers of the ABC in FDN 88 in each of paragraphs 13, 17-19 and 26-47 be struck out, but with liberty to the ABC to file proper answers within 14 days.
2The application to strike out in FDN 88 each of the answers to 64.12-64.20 and 65 be refused.
3The question of costs is reserved.
4Hearing on 15 January 2007 is certified fit for counsel.
5Directions Hearing adjourned to 15 March 2007 at 11.40 am.
(Where part of an answer is objectionable for the reasons given above I have struck out the whole of the answer but envisage it will be replaced by an answer in terms which I have found to be acceptable).
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