Sands v State of South Australia - [2005] SASC 381

Supreme Court of South Australia
(Civil)
SANDS v STATE OF SOUTH AUSTRALIA
Judgment of The Honourable Acting Chief Justice Perry (ex tempore)
27 September 2005
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - AGAINST WHAT PERSONS
The plaintiff sued the defendant for damages for alleged defamatory statements made by a senior detective in a press release and at a press conference, both relating to a police investigation into an alleged murder - in an application brought before a defence had been filed, the plaintiff sought pre-trial discovery against a stranger to the proceedings, a journalist who had written a so-called "exclusive" article in a daily newspaper - in the article he referred to an application by the police pursuant to the Criminal Law (Forensic Procedures) Act 1998 to obtain the plaintiff's finger and palm prints - held that the application was premature, and discovery should first be obtained from the defendant - observations as to the "newspaper rule" - application adjourned indefinitely.
Criminal Law (Forensic Procedures) Act 1988 s 14; SCR 4 60.02, referred to.
Williams Aviation Pty Ltd v Santos Ltd (1985) 40 SASR 272; John Fairfax and Sons Ltd and Anor v Conjuangco (1988) 165 CLR 346, considered.

SANDS v STATE OF SOUTH AUSTRALIA
[2005] SASC 381
Civil

PERRY ACJ. (ex tempore) The plaintiff has instituted proceedings in this Court by the issue of an inter parte summons on 9 September 2005. The defendant is the State of South Australia, which is sued on the basis that pursuant to the Police Act 1998, it is liable for the actions of the South Australian Police.
In the proceedings the plaintiff claims damages for defamatory statements alleged to have been made by a senior detective superintendent of police in connection with its investigations into the murder of a woman, one Corinna Marr, who was found dead in her home unit on 4 July 1997.
The plaintiff relies upon two alleged defamatory statements.
One is a verbal statement made at a press conference; the other, a written media release.
Both statements related to an application pursuant to the Criminal Law (Forensic Procedures) Act1998 in which an order was sought that the plaintiff provide finger and palm prints to assist the police investigation of the murder.
Before the hearing of the application in the Magistrates Court but after it had been taken out, Advertiser Newspapers Ltd (“Advertiser Newspapers”) published what was described as an “exclusive” report authored by Mr Hunt, then a journalist, stating that the application had been lodged in the Magistrates Court, and giving some details of it, but without naming the plaintiff. Further articles were published after the application had been dealt with.
In his present application, the plaintiff asserts that the likelihood is that the police department leaked information to Mr Hunt, which led to his preparation and publication of the articles.
Neither Mr Hunt nor Advertiser Newspapers are defendants to the proceedings. However, the plaintiff seeks third party discovery against Mr Hunt in the following terms:
Orders for disclosure and production of documents by one Nigel Hunt, a journalist employed by Advertiser Newspapers Ltd, such documents to include notes and all other documents relevant to articles published by Advertiser Newspapers Ltd on 28 February, 3 March, and 4 March 2004 making reference to a Forensic Procedure application seeking orders for fingerprints to be obtained from a suspect brought by police on Tuesday 2 March 2004 in the Adelaide Magistrates Court.
When the application was first listed before me, I directed that it be served on Mr Hunt, who now appears through his counsel, Mr Edwardson. He opposes the making of the order sought.
In an affidavit filed in support of the application, Mr Swan, solicitor for the plaintiff, states, inter alia:
The plaintiff seeks to identify and obtain evidence capable of permitting him to properly plead his claim; and to defeat the anticipated defence of qualified privilege.
In his argument in support of the application, Mr Heywood-Smith QC, who appeared for the plaintiff, submitted further that the plaintiff was entitled to know, as he put it, “the strength of his case”. In effect, he contended that the plaintiff was entitled to search out evidence which might be relevant to rebut a possible defence of qualified privilege which might be raised.
Applications for third party discovery are dealt with pursuant to SCR r 60. The powers of the court are defined in r 60.02.
In Williams Aviation Pty Ltd v Santos Ltd,[1] O’Loughlin J dealt with an application for third party discovery brought pursuant to the predecessor of the present rule, which was in similar terms.
[1] (1985) 40 SASR 272.
During the course of his reasons for judgment, O’Loughlin J said:[2]
I believe that a party to litigation should exhaust its rights with respect to discovery against the other party before involving a stranger in the matter.
[2] Ibid at 276.
While conceding that there may be exceptions, he referred to that as the general rule.
Later in his judgment he said:[3]
I have already held that a stranger to the proceedings should not be burdened by an application of this nature until all rights against parties to the proceedings have been exhausted.
[3] Ibid at 280.
At the same time, he acknowledged that once those rights had been exhausted, the situation might then change.
In my view, that principle referred to by O’Loughlin J is relevant to the present application. The statement of claim has been filed, although as yet no defence has been filed. Discovery is yet to be given. When it is given, light may be thrown on the circumstances in which Mr Hunt might have been informed of the making of the application. It may then be that the present application becomes otiose.
As for the suggestion that it is necessary to make the order sought in order properly to plead the claim, although the statement of claim was not filed at the time the application was taken out, it has subsequently been filed, apparently without embarrassment.
In dealing with the application, it is relevant also to have regard to the “newspaper rule” as it is called.
The rule was called in aid by Mr Edwardson in support of his opposition to the application. The rule was the subject of comment by the High Court in John Fairfax and Sons Ltd and Anor v Conjuangco.[4] In the course of their judgment, Mason, Deane and Gaudron JJ observed:[5]
… courts have refused to accord absolute protection on the confidentiality of the journalist’s course of information, whilst at the same time imposing some restraints on the entitlement of a litigant to compel disclosure of the identity of the source. In effect, the courts have acted according to the principle that disclosure of the source will not be required unless it is necessary in the interests of justice. So, generally speaking, disclosure will not be compelled at an interlocutory stage of a defamation or related action and even at the trial the court will not compel disclosure unless it is necessary to do justice between parties.
[4] (1988) 165 CLR 346.
[5] Ibid at 354.
Later in their judgment their Honours observed:[6]
For our part we much doubt whether the newspaper rule would be applied to a case such as the present if the question were to arise in the context of an interlocutory application in a defamation action against the appellants in which malice was in issue.
[6] Ibid at 358.
It is fair to say that malice is not an issue at this stage. Indeed, there are no issues as yet defined in the pleadings. Malice may become an issue if the defence of qualified privilege is raised. So that it may well be that an application of the kind now pursued by the plaintiff might be successful at a later stage of the proceedings.
At this stage, however, I agree with the argument put by Mr Edwardson that it is premature for two reasons at least. One is because discovery has yet to be made by the defendant. And in the second place, it is not clear yet whether the question of malice may become an issue in proceedings.
Furthermore, while my response to the application does not turn solely on the terms of the application of the newspaper rule, in my view, the rule is of application, in the sense that, at this stage of the case, the public interest in preserving the confidentiality of Mr Hunt’s sources of information overrides the public interest in compelling disclosure of the identity of the source of that information.
However, as I have pointed out, that position may not apply at a later stage of the case.
In those circumstances, rather than dismiss the application, I am prepared, if Mr Heywood-Smith invites me to do so, to adjourn the application to a date to be fixed, on the footing that the plaintiff would be at liberty to bring it on again at a later stage of the action, after the issues have been joined, and after discovery has been given by the defendant.
[AFTER HEARING MR HEYWOOD-SMITH]
PERRY ACJ. The order is that the application is adjourned to a date to be fixed.
[AFTER HEARING THE PARTIES AS TO COSTS]
PERRY ACJ. The costs of and incidental to the application are reserved, save that the costs of the attendance before me today are to be taxed and paid by the plaintiff to Mr Hunt. There will be no order as to the costs of the attendance today by the defendant.