Searle v West Australian Newspapers Ltd
[2006] WASC 84
SEARLE -v- WEST AUSTRALIAN NEWSPAPERS LTD & ANOR [2006] WASC 84
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 84 | |
| Case No: | CIV:2635/2002 | 22 MARCH 2006 | |
| Coram: | MASTER NEWNES | 19/05/06 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Leave to interrogate granted in part | ||
| B | |||
| PDF Version |
| Parties: | ROBERT SEARLE WEST AUSTRALIAN NEWSPAPERS LTD (ACN 008 667 632) MATTHEW JONES |
Catchwords: | Defamation Application for leave to interrogate Whether proposed interrogatories directed to matters in issue Whether otherwise objectionable Principles to be applied Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 27 r 1 |
Case References: | Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 Becker v Smith's Newspaper Ltd (No 1) [1931] SASR 1 Hennessy v Wright (No 2) (1890) 24 QBD 445 Herald & Weekly Times Ltd v Hawke & Kornhauser [1984] VR 587 Kadlunga v Electricity Trust of South Australia (1987) 43 SASR 313 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Marriott v Chamberlain (1886) 17 QBD 154 Mulley & Marney v Manifold (1959) 103 CLR 341 Parnell v Walter (1890) 24 QBD 441 Re Strachan [1895] 1 Ch 439 Saunders v Jones (1877) 7 Ch D 435 Sharpe v Smail (1975) 5 ALR 377 Spedley Securities Ltd (In Liq) v Bank of New Zealand (No 2) (1991) 27 NSWLR 73 Stanfield Properties Ltd v National Westminster Bank plc [1983] 2 All ER 249 The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane v Discovery Bay Developments Pty Ltd (Receivers & Managers Appointed) [1995] 2 Qd R 121 West v Conway (1923) 23 SR (NSW) 344 Austin v Austin [1905] VLR 377 Bellambi Coal Co Ltd v Barry (1904) 4 SR (NSW) 748 Chan v West Australian Newspapers Ltd & Ors, unreported; SCt of WA; Library No 980021; 23 January 1998 Conde v 2KY Broadcasters Pty Ltd [1982] 2 NSWLR 221 Cumming v Matheson (1970) 92 WN (NSW) 339 Eade v Jacobs (1877) 3 Ex D 335 Knapp v Harvey [1911] 2 KB 725 Lowe v Marriott [1998] TASSC 111 Markovic v Northern Sydney Area Health Service & Anor [2001] NSWSC 252 McBride v Sandland [1917] SALR 249 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
WEST AUSTRALIAN NEWSPAPERS LTD (ACN 008 667 632)
First Defendant
MATTHEW JONES
Second Defendant
Catchwords:
Defamation - Application for leave to interrogate - Whether proposed interrogatories directed to matters in issue - Whether otherwise objectionable - Principles to be applied - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 27 r 1
(Page 2)
Result:
Leave to interrogate granted in part
Category: B
Representation:
Counsel:
Plaintiff : Dr P R MacMillan
First Defendant : Ms M R Breen
Second Defendant : Ms M R Breen
Solicitors:
Plaintiff : Stephen Kemp
First Defendant : Edwards Wallace
Second Defendant : Edwards Wallace
Case(s) referred to in judgment(s):
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250
Becker v Smith's Newspaper Ltd (No 1) [1931] SASR 1
Hennessy v Wright (No 2) (1890) 24 QBD 445
Herald & Weekly Times Ltd v Hawke & Kornhauser [1984] VR 587
Kadlunga v Electricity Trust of South Australia (1987) 43 SASR 313
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Marriott v Chamberlain (1886) 17 QBD 154
Mulley & Marney v Manifold (1959) 103 CLR 341
Parnell v Walter (1890) 24 QBD 441
Re Strachan [1895] 1 Ch 439
Saunders v Jones (1877) 7 Ch D 435
Sharpe v Smail (1975) 5 ALR 377
Spedley Securities Ltd (In Liq) v Bank of New Zealand (No 2) (1991) 27 NSWLR 73
Stanfield Properties Ltd v National Westminster Bank plc [1983] 2 All ER 249
(Page 3)
The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane v Discovery Bay Developments Pty Ltd (Receivers & Managers Appointed) [1995] 2 Qd R 121
West v Conway (1923) 23 SR (NSW) 344
Case(s) also cited:
Austin v Austin [1905] VLR 377
Bellambi Coal Co Ltd v Barry (1904) 4 SR (NSW) 748
Chan v West Australian Newspapers Ltd & Ors, unreported; SCt of WA; Library No 980021; 23 January 1998
Conde v 2KY Broadcasters Pty Ltd [1982] 2 NSWLR 221
Cumming v Matheson (1970) 92 WN (NSW) 339
Eade v Jacobs (1877) 3 Ex D 335
Knapp v Harvey [1911] 2 KB 725
Lowe v Marriott [1998] TASSC 111
Markovic v Northern Sydney Area Health Service & Anor [2001] NSWSC 252
McBride v Sandland [1917] SALR 249
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1MASTER NEWNES: This is an application by the plaintiff for leave under O 27 r 1 to administer interrogatories to the first defendant. Such leave is not, of course, obtained as of right. Leave will only be granted where the proposed interrogatories are reasonably required for the purposes of the just and efficient resolution of the action.
2 The general principles applicable to interrogatories are well known. Interrogatories are not confined to facts directly in issue but may be directed to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue: Marriott v Chamberlain (1886) 17 QBD 154 at 163. Interrogatories do not relate to a matter in issue unless they can fairly be said to be material to support a party's case or destroy the other party's case: Hennessy v Wright (No 2) (1890) 24 QBD 445 at 447. They may not be directed simply to the evidence by which the other party will seek to prove its case: Re Strachan [1895] 1 Ch 439 at 445; Herald & Weekly Times Ltd v Hawke & Kornhauser [1984] VR 587 at 592. Nor may interrogatories be fishing; that is to say, questions may not be asked in order to enable a party to see if they have a case of which at present they know nothing and which is different to the case they currently make: Mulley & Marney v Manifold (1959) 103 CLR 341 at 345; Parnell v Walter (1890) 24 QBD 441 at 448; or in the rather more evocative terms in which Owen J described "fishing" in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254, where "a person who has no evidence that there are particular kind of fish in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not".
3 But the rules applicable to the permissible scope of interrogatories are not to be applied inflexibly: see Herald & Weekly Times Ltd v Hawke & Kornhauser (supra) at 591 - 592. That is particularly the case in respect of rules that evolved in earlier times when the practices and the approach to litigation were somewhat different. The approach today must reflect the principles set out in O 1 r 4A and must also recognise that parties are now required to disclose before trial much more information - in particular, in most cases, the evidence of their witnesses - than was previously the case, so that the rationale for rules that have existed in the past in relation to the permissible scope of interrogatories may no longer have the same force.
4 Ultimately, the touchstone must always be what is in the interests of the fair, just and efficient resolution of the action. In that respect,there is force in the consideration that interrogatories, the answers to which would
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- enable a party better to assess their case and to be in a position to give more informed consideration to the question of settlement, are to be encouraged: Herald & Weekly Times Ltd v Hawke & Kornhauser (supra) at 591.
5 In this action the plaintiff claims that he was defamed by articles published in "The West Australian" newspaper on 11 February 2002 and 12 February 2002 respectively.
6 In its defence, the first defendant has, relevantly for present purposes, pleaded a defence of qualified privilege in respect of each article, relying on the principles described by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The first defendant pleads, among other things, that the first defendant took proper steps, so far as they were reasonably open, to verify the accuracy of the matters set out in the articles.
7 The first defendant has agreed to answer certain interrogatories proposed by the plaintiff but has declined to answer others. It is the latter with which this application is concerned.
8 The first proposed interrogatories in contention are directed to two sets of shorthand notes made by an employee of the first defendant, one set having been made before the publications occurred and the other after they had occurred. The shorthand notes have been discovered by the first defendant as item 5 in its list of documents. Apparently in response to a request from the plaintiff's solicitors, the first defendant's solicitors provided a typed transcript of each set of shorthand notes. The typed transcript of the notes is identified as annexure "B" to the interrogatories.
9 The plaintiff seeks to administer the following interrogatories:
"2. Look at the document described in item 5 of the first defendant's list of documents dated 5 February 2002 and entitled 'Copy notes taken by Charlene Wilson-Clarke' ('Item 5') and at the first defendant's solicitor's letter dated 19 February 2004 and the attached transcript, annexed hereto and marked 'A' and 'B', respectively, ('Annexures "A" and "B") and then answer the following interrogatories:
(a) is Annexure B a true and accurate transcript of Item 5?
- (b) if the answer to interrogatory 2(a) is in the affirmative, does Annexure B record verbatim the words used by the second defendant in the course of the conversation(s) which it records?"
10 It was submitted on behalf of the first defendant that proposed interrogatory 2(a) provides no reference within which to determine the truth and accuracy of the transcript and, accordingly, the interrogatory is vague and not capable of being answered by the first defendant. Counsel confirmed that that submission did not seek to import post-modernist issues about the concept of truth, but rather the complaint was that it was not clear how the accuracy of the shorthand notes was to be verified; that is, by the writer of the notes or by some independent authority or otherwise. It was submitted that, in any event, it is "a matter for evidence".
11 In relation to proposed interrogatory 2(b), it was submitted by counsel for the first defendant that the interrogatory was oppressive in that it imposed upon the first defendant a burden which was out of all proportion to the benefit to be gained by the plaintiff, and also because it required the first defendant to undertake a process of comparison and of interpretation. It was also submitted that it was simply a matter for evidence.
12 Counsel for the plaintiff submitted in relation to proposed interrogatory 2(a) that no reference was required to say whether the transcript was accurate. It was supplied by the first defendant's solicitors and there should be no difficulty in the first defendant answering an interrogatory as to whether the transcript is an accurate one.
13 In relation to proposed interrogatory 2(b), it was submitted on behalf of the plaintiff that where there is a written record of a conversation it is permissible to interrogate as to the precise words used: Kadlunga v Electricity Trust of South Australia (1987) 43 SASR 313. There could therefore be no objection to an interrogatory as to whether the document is a verbatim record of the words used in the conversation which it records.
14 Counsel for the first defendant did not take issue with the submission on behalf of the plaintiff as to the effect of the decision in Kadlunga v Electricity Trust of South Australia (supra) but contended that it was unclear what was meant by "verbatim" and that it was, in any event, unclear how the transcript was to be verified.
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15 I do not consider that the objections to proposed interrogatory 2(a) are made out. The transcript has been provided by the first defendant on the basis that it is a transliteration of the shorthand notes to ordinary English, those shorthand notes being not readily decipherable by a person other than the writer. The interrogatory seeks to ascertain whether the transliteration is accurate. I do not consider there is any real difficulty in answering the interrogatory.
16 I also do not accept that the objection to proposed interrogatory 2(b) is made out. I do not accept there is any vagueness about the expression "verbatim". As to the second point, if an interrogatory is administered to a company, the relevant officer of the company is required to make all reasonable inquiries of its servants and agents who are likely to have knowledge regarding the subject-matter of the interrogatory: Spedley Securities Ltd (In Liq) v Bank of New Zealand (No 2) (1991) 27 NSWLR 73, at 74 - 75. Inquiries must also be made as to whether any past employees or agents of the company are likely to have knowledge of the matter and reasonable inquiries must be made of any past employees or agents who are likely to have such knowledge: Spedley Securities (supra); Stanfield Properties Ltd v National Westminster Bank plc [1983] 2 All ER 249; The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane v Discovery Bay Developments Pty Ltd (Receivers & Managers Appointed) [1995] 2 Qd R 121.
17 I did not understand it to be in issue that the author of the shorthand notes in question is, or was at the relevant time, a reporter employed by the first defendant and that she made the notes in the course of her employment by the first defendant. So far as it may be necessary, the question of whether the transcript records verbatim what was said by the second defendant is a matter that can properly be the subject of inquiry by the responsible officer of the first defendant of, among others, the author of the shorthand notes, and the interrogatory answered on the basis of the state of belief of the relevant officer following such inquiries.
18 I should say that the first defendant did not contend that interrogatory 2(a) was objectionable on the basis that it went to the content of a document. In any event, I do not think that such an objection would have been made good in this case. In that respect I was referred by the plaintiff's counsel, rather in the nature of a pre-emptive strike, to Becker v Smith's Newspaper Ltd (No 1) [1931] SASR 1, where interrogatories were allowed which were directed to ascertaining the meaning of certain figures, signs, words and abbreviations of words in German in books disclosed by the party interrogated. It was submitted,
(Page 8)
- correctly it seems to me, that although the case is not directly on point, the current position is reasonably analogous. To a similar effect is Sharpe v Smail (1975) 5 ALR 377, where interrogatories were allowed as to the meaning of certain expressions in books of account of the party interrogated.
19 In par 6.12 of the first defendant's re-amended defence, the first defendant pleads that it took proper steps so far as they were reasonably open to verify the accuracy of the matters set out in the first article. In response to a request for further and better particulars of that plea, the first defendant says that "by its agent [the first defendant] conducted interviews and reviewed documentary materials to verify the accuracy of the matters set out in the first article".
20 The plaintiff seeks to interrogate in respect of that plea in the following terms:
"3. Look at paragraph 6.12 of the first defendant's re-amended defence dated April 2005 as amplified by further particulars and answer the following interrogatories:
(a) what agent does the defendant allege conducted interviews and reviewed documentary materials to verify the accuracy of the matter set out in the First Article;
(b) with whom did the agent referred to in interrogatory 3(a) conduct interviews to verify the accuracy of the matters set out in the First Article;
(c) what documentary materials did the agent referred to in interrogatory 3(a) review to verify the accuracy of the matters set out in the First Articled [sic]."
(Page 9)
22 On behalf of the plaintiff it was submitted that the interrogatories were to enable him better to understand the first defendant's case. They were not put merely to elicit the names of witnesses. An issue in the action, raised by the defence of qualified privilege, is whether the first defendant took reasonable steps to verify the accuracy of the matters set out in the first article, and the identity of those interviewed and the material examined by the first defendant are relevant to that factual issue.
23 I do not consider that the proposed interrogatories are objectionable.
24 While the practice of administering interrogatories in relation to matters that could equally well be the subject of a request for further and better particulars is not to be encouraged, it is not a bar to such interrogatories and the matter remains one of discretion: Saunders v Jones (1877) 7 Ch D 435 at 452. In this case, in response to the plaintiff's request for particulars, the first defendant expressly refused to provide any further particulars of the steps it took to verify the accuracy of the matters set out in the first article, beyond saying that it conducted interviews and reviewed documentary material. The plaintiff now seeks to pursue the matter by way of interrogatories. In the circumstances, I do not consider that there is substance in this objection to the proposed interrogatories.
25 Turning then to the issue of whether the interrogatories go to matters in issue, it is well established that an interrogatory designed simply to elicit the names of witnesses will not be allowed. On the other hand, where an interrogatory is otherwise proper it is not a valid objection that the answer to it will reveal the names of witnesses: Marriott v Chamberlain (supra) at 161; West v Conway (1923) 23 SR (NSW) 344 at 347.
26 In this case the defendant pleads that it took reasonable steps to verify the accuracy of the words complained of by, among other things, conducting interviews and reviewing documentary materials. But the mere fact that interviews were conducted and material reviewed cannot of itself establish that the first defendant took reasonable steps to verify the accuracy of the material. Whether or not that constituted reasonable steps will depend upon who was interviewed and the nature of the material reviewed. The interrogatories, in my view, therefore go to facts in issue in the action. I also do not consider that the proposed interrogatories necessarily require the first defendant to disclose the actual names of the interviewees or to identify each of the specific documents reviewed, and generic descriptions of some kind may well be sufficient. I understood
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- counsel for the plaintiff to accept that and, to the extent it may be necessary, he proposed to amend the interrogatories to make that clear.
27 The plaintiff seeks to administer interrogatories relating to certain other shorthand notes discovered by the first defendant and to a transcript of those notes which has been provided by the first defendant. The proposed interrogatories are in the following terms:
"5. Look at the document described in item 9 of the first defendant's list of documents dated 11 February 2002 and entitled 'Copy notes made by Charlie [sic] Wilson-Clarke entitled "after publication." ' ('Item 9') and the first defendant's solicitor's letter dated 19 February 2004 and the attached transcript annexed hereto and marked 'C' and 'D' respectively ('Annexures "C" and "D") and then answer the following interrogatories:
(a) is Annexure D a true and accurate transcript of Item 9?
(b) if the answer to interrogatory 5(a) is in the affirmative, does Annexure D set out verbatim what was said to [sic] in the course of the interview to the author of Item 9?"
29 The plaintiff seeks to administer interrogatories in connection with the defence of qualified privilege pleaded in relation to the second article and, in particular, to the plea that the first defendant took proper steps so far as they were reasonably open to verify the accuracy of the matters set out in the second article and that, to that end, the first defendant, by its agent, had conducted interviews and reviewed documentary materials. The plaintiff seeks to administer the following interrogatories:
"6. Look at paragraph 17.3 of the first defendant's re-amended defence dated April 2005 as amplified by further particulars and then answer the following interrogatories:
- (a) who was the first defendant's agent who conducted interviews and reviewed documentary materials to verify the accuracy of the matters set out in the Second Article?
(b) with whom did that agent conduct interviews to verify the accuracy of the matters set out in the Second Article?
(c) what documentary materials did that agent review to verify the accuracy of the matters set out in the Second Article"
30 The submissions of the parties in respect of the proposed interrogatories were the same as those in respect of the proposed interrogatories numbered 3 and, for the reasons I gave in relation to those proposed interrogatories, I consider the first defendant's objections are not made out.
31 Finally, the plaintiff seeks to interrogate in relation to par 17 of the re-amended statement of claim. Paragraph 17 pleads that, during or about early February 2002, the second defendant made a verbal statement or statements in the form of an interview or interviews to a representative of the first defendant, and the substance of the alleged verbal statement or statements are then set out in a number of sub-paragraphs. That allegation is not admitted by the first defendant in its defence.
32 In interrogatory 7(b), the plaintiff asks, first "did a representative of the first defendant in early 2002 interview the second defendant?"; and secondly, "if so did the second defendant say to the representative of the first defendant in the course of that interview words to the effect that …", and there follows a reproduction of each of the sub-paragraphs pleaded in par 17 of the re-amended statement of claim.
33 The first defendant objects to the second question on the ground that the interrogatory goes not to the substance of a conversation but to the details of it and is therefore impermissible. It was also contended on behalf of the first defendant that the interrogatory is "fishing" in that it is intended to enable the plaintiff to see if he has a case of which at present he knows nothing. Moreover, it was said, the interrogatory is a matter for evidence. Counsel added that, in any event, the interrogatory should be directed to the second defendant.
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34 It was submitted on behalf of the plaintiff that while a party may not interrogate as to the precise words used in a conversation, the proposed interrogatory goes not to the precise words used but rather to the effect of the words. There was therefore nothing in the first objection. As to the complaint of "fishing", in its defence the first defendant does not admit the allegations in par 17 of the re-amended statement of claim. A matter in issue is therefore whether words to the effect pleaded in par 17 were spoken. The interrogatory cannot therefore properly be described as "fishing". It was submitted that the interrogatory was unobjectionable.
35 I would not be prepared to grant leave to administer the interrogatory. The statements in respect of which the plaintiff seeks to interrogate are not pleaded in support of any claim against the first defendant but are relied upon solely to found a claim against the second defendant. In the statement of claim it is alleged that the second defendant made the statements pleaded in par 17 to a representative of the first defendant knowing or intending, or reasonably expecting, that they would be published by the first defendant in its newspaper and that the first defendant did publish them as part of the first article. A claim for damages is made against the second defendant.
36 That claim is distinct from the claim against the first defendant. A separate claim, pleaded in par 3 to par 9 of the statement of claim, is made against the first defendant in respect of the whole of the first article.
37 The proposed interrogatory is not therefore directed to any matter in issue between the plaintiff and the first defendant, but rather to an issue solely between the plaintiff and the second defendant. In my view, it would not be appropriate to grant leave for the interrogatory to be administered to the first defendant.
38 It was not contended on behalf of the first defendant that apart from the matters to which I have referred there was any other reason that the plaintiff should be denied leave to interrogate in terms of the proposed interrogatories.
39 It seems to me that, save for interrogatory 7(b), the interrogatories go to material issues in the action and that in the circumstances of this case it is appropriate that leave be granted to the plaintiff to administer interrogatories in the terms proposed.
40 I will hear the parties on the appropriate form of orders and on costs.
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