Shepherd v Walsh

IN THE SUPREME COURT

OF QUEENSLAND

CAIRNS	No. 49 of 1996
Before the Hon. Justice Jones
[Shepherd -v- Walsh & Ors] [2000] QSC 177
Plaintiff:	SONIA LOUISE SHEPHERD
First Defendant:	RICHARD WALSH

Second Defendant: ACP PUBLISHING PTY LTD

Third Defendant:

BREHMER FAIRFAX PTY LTD

Fourth Defendant: ACP PUBLISHING PTY LTD Trading as ‘NETWORK

DISTRIBUTION COMPANY’

Fifth Defendant:

ANTHONY DEAN PATTERSON

JONES J

Judgment delivered 19th Day of June 2000

1.         The plaintiff provide further and better particulars of the statement of claim pursuant to the request dated 13 April, 2000 within 21 days of the date hereof.
2.         That the defendants have leave to deliver interrogatories for the examination of the plaintiff in terms of the draft interrogatories dated 13 April, 2000 save for paragraphs 6 and 7.
3.         That the plaintiff pay the defendants’ costs of and incidental to this application to be assessed.
4.         The plaintiff’s application to have the matter set down for trial is adjourned to be brought on upon 4 days notice to all other parties.

Catchwords:	PACTICE - PARTICULARS - Defamation action - Identification of Plaintiff - Category of publication not identifying plaintiff - Publication to limited range of persons with special knowledge - Whether particulars of identification by others ought to be given.
Counsel:	Mr A. Philp for the Plaintiff Mr K. Priestley for the Defendant
Solicitors:	Bottoms English for the Plaintiff
Hearing date:	18th April 2000

IN THE SUPREME COURT

OF QUEENSLAND HELD AT CAIRNS

Registry: Cairns

Number: S49 of 1996

Plaintiff:	SONIA LOUISE SHEPHERD
First Defendant:	RICHARD WALSH
Second Defendant:	ACP PUBLISHING PTY LTD
Third Defendant:	BREHMER FAIRFAX PTY LTD
Fourth Defendant:	ACP PUBLISHING PTY LTD Trading as ‘NETWORK DISTRIBUTION COMPANY’
Fifth Defendant:	ANTHONY DEAN PATTERSON

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE JONES

DELIVERED THE DAY OF JUNE, 2000

Before me are two applications, one on behalf of the plaintiff to have the
action set down for trial, and the other by the first, second, third and fourth
defendants (“the defendants”) for further and better particulars and for leave to
deliver interrogatories. I shall deal with the latter application first.
Particulars
By her statement of claim the plaintiff alleges that she was defamed by the
publication, without her permission, of a nude photograph of her with
accompanying written comment. The publication was in a magazine of general distribution called “The Picture” in respect of which the defendants are
respectively the publisher, printer and distributor.
The magazine is published throughout Australia. The defendants have
admitted that the published photo “was of and concerning the plaintiff” [1]. The
plaintiff contends that the identification of the plaintiff as a person about whom the
written comment was made is thereby complete. Consequently, the plaintiff
argues, that provided the publication is found to be defamatory then the cause of
action is established.
The defendants argue that the admission that the photograph as being one of
the plaintiff is only part of a broader issue and that the scope of identification
remains to be determined. The defendants argue that the terms of the written
comment are not descriptive of the plaintiff and that fact reduces the likelihood of
the person depicted in the photograph being identified as the plaintiff.
The level of success of the plaintiff’s action in any event, depends on the
extent to which the plaintiff has been identified by the photographic image. One
would expect such identification would be made by the family members and close
friends. How widely the identification would extend beyond that is a matter for
evidence at the trial. The ultimate finding on this issue will be crucial in the
assessment of damages.
Consequently, it seems to me that this case falls in the category of a
publication which does not identify the plaintiff and where the publication comes
to the notice of a limited range of persons with special knowledge.
Master Lee QC (as he then was) in Irvine v John Fairfax & Sons Limited [2]
made a detailed examination of the relevant authorities going to the issues of whether particulars ought to be given in such circumstances and the extent of those
particulars. He made particular reference to the decision of the House of Lords in
Morgan v Odham’s Press Ltd [3] and cited from the opinion of Lord Reid at
p.1242 as follows:-
“It must often happen that a defamatory statement published at large does not identify any particular person and that an ordinary member of the public who reads it in its context cannot tell who is referred to.
....
On the other hand when people come and say that they thought that the plaintiff was referred to by a statement which does not identify anyone there must be some protection for a defendant who is taken unawares. It is now well settled that the plaintiff must give sufficient particulars of the special facts on which he or his witnesses rely. But that in itself may not be enough. It may be plain and obvious that no sensible person could, by reason of knowing these facts, jump to the conclusion that the defamatory words refer to the plaintiff.”
Master Lee concluded from that passage that particulars should be given by a
plaintiff of “the identity of persons with special knowledge of the extrinsic facts on
which the plaintiff intends to rely in order to prove publication of the defamatory
matter of and concerning [her]”. See at p.29.
A similar point was made in Moore v Australian Broadcasting
Commission [4] where Hunt J said (at p.40,062):-
“Whether a plaintiff relies upon extrinsic facts which are known only to a very few people, or whether he relies upon extrinsic facts which are known to a lot of people, the defendant is clearly entitled to know just precisely what is the nature of the case which has been made against him...
There has been a number of cases in England which have dealt with this problem. In those cases, which are decisions of the English Court of Appeal, it has been made clear that the defendant is entitled to know the names and addresses of the persons who had knowledge of the identifying facts. I refer particularly to Fullam v Newcastle and Chronicle Ltd [1977] 1 WLR 651. At 656, Lord Denning MR made it perfectly clear that the plaintiff in that case had to give the names and addresses of the persons to whom it was alleged the matter complained of was published in a sense defamatory of the plaintiff. See also Grappelli v Derek Bloch (Holdings) Ltd [1981] 1 WLR 822. Those cases have been followed here in Australia, although here the information is more properly given in particulars rather than stated as material facts: Dawson Bloodstock Agency Pty Ltd v Mirror Newspapers Ltd [1979] 2 NSWLR 733 at 735-737.”
In Lazarus v Deutsche Lufthansa AG [5] Hunt J speaking generally on this
question of identification said as follows (at p.191-2):-
“The plaintiff should also have given in his statement of claim particulars of the identity of persons to whom the publication is alleged to have been made. The identity of those persons (either general or precise) is of vital importance to a defendant in almost every defamation action, whether the publication was oral or in writing. In both cases, the defence of qualified privilege will depend upon the defendant being able to establish that those persons to whom he is alleged to have published the matter complained of had a legitimate interest in the matter so published. The difference between substantial or trivial damages (Fullam v Newcastle Chronicle and Journal Ltd (at 659; 39)) and the application of the defence of unlikelihood of harm afforded by the Defamation Act 1974, s13 (Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reporter 80- 691), will depend in both cases upon the identity (general or precise) of those to whom the matter complained of was published.”
His Honour then went on to deal with the rule that such particulars are not usual in
mass media publications except where the plaintiff is not specifically identified in
the article.
That is the situation here. The plaintiff does not claim any particular
notoriety which would permit her being identified simply by the publication of the
photograph or by the written words. Identification of her by photograph alone
must, perforce, lie within very limited parameters.
The circumstances of this case are such that it falls within the exception
identified in Fulham’s case. Particulars going to the identification by others that
the defamation was “of and concerning the plaintiff” therefore ought to be given. I would permit the particulars to be sought in the terms of the request which has
been placed before me.
Interrogatories
The plaintiff opposes the defendants’ application for leave to deliver
interrogatories.
The application is made pursuant to r.230(1) of the Uniform Civil Procedure
Rules (UCPR) which relevantly provides that the Court may give leave –
“(b) Only if the Court is satisfied there is not likely to be available to the applicant at the trial another reasonably simple and inexpensive way of proving the matter sought to be elicited by interrogatories.”
The defendants’ claim, consistently with their argument in relation to the
request for particulars, is that the interrogatories are necessary to establish facts
relevant to the question of whether the publication was “of or concerning the
plaintiff”. Proposed interrogatories 3 to 5 deal with this problem. The defendants
argue that the plaintiff was not identified in the publication they are entitled to
know the facts or basis upon which those persons who have made the
identification, or who have the special knowledge necessary to do so, can be
identified.
It is clear enough that these are material issues about which the defendants
are entitled to know what is the plaintiff’s case. They are also matters in relation to
which the defendants’ capacity to obtain relevant evidence is rather constrained.
For the plaintiff it was suggested that the information could be sought from
the plaintiff by cross-examination and that this was the “reasonably simple and
inexpensive way of proving the matter”. The plaintiff also argues that the
proposed interrogatories assume a reliance by her on the written terms of the
publication when in fact there is no such reliance.
In my view the defendants are entitled to know the strength of the case they
have to meet and also to have assembled the evidence upon which they wish to rely
to meet the plaintiff’s case well in advance of the commencement of the trial. My
perception is that it is the defendants who seek to rely on the written comments as a
basis for suggesting a reduced likelihood of the plaintiff being identified by others
notwithstanding the photograph being of her.
I accept the defendants’ argument that there is not likely to be available any
other way of obtaining evidence of these two relevant issues. Accordingly, I
would permit the interrogatories 3 to 5 in the terms of the draft tendered written
application to be delivered.
Proposed interrogatories 6, 7 and 8 are challenged as not going to the issue.
This submission seems to me to be correct in relation to interrogatories Nos. 6 and
7 but No. 8 appears to go to the identity of persons with special knowledge and it
should therefore be permitted.
The remaining proposed interrogatories go to the quantum of damages and
are couched in terms commonly used for this purpose. [6] They ought to be allowed.
Setting down for Trial
This matter has been somewhat delayed in its progress to a trial date. Once
the steps of providing particulars and answers to interrogatories have been
undertaken there appears to be no further matters to be attended to before the
matter is listed. This is certainly the indication given by the first, second, third and
fourth defendants. The fifth defendant played no part in these applications but I
assume he will in due course be served with the further and better particulars to be
provided. In the expectation that the trial request will be signed by all defendants once these disputed matters have been attended to, I will not make any order about
the listing of the action. I will simply adjourn the application to be brought on
upon 4 days to the other parties.
My orders therefore are that –

1. The plaintiff provide further and better particulars of the statement of
claim pursuant to the request dated 13 April, 2000 within 21 days of
the date hereof.
2.       That the defendants have leave to deliver interrogatories for the
examination of the plaintiff in terms of the draft interrogatories dated
13 April, 2000 save for paragraphs 6 and 7.
3.       That the plaintiff pay the defendants’ costs of and incidental to this
application to be assessed.
4.       The plaintiff’s application to have the matter set down for trial is
adjourned to be brought on upon 4 days notice to all other parties.

[2] Unreported decision 21 May 1985- No 652 of 1984
[3] (1971) 1 WLR 1239
[4] Australian Defamation Law and Practice [50,010] – 5 July 1985
[5] (1985) 1 NSWLR 188
[6] Assaf v Skakos – Australian Defamation Law and Practice 52,050

[2000] QSC 177

19/06/2000