Solomon v Sumner
[2002] WASC 261
SOLOMON -v- SUMNER [2002] WASC 261
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 261 | |
| Case No: | CIV:1929/2000 | 28 OCTOBER 2002 | |
| Coram: | HASLUCK J | 28/10/02 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| Parties: | JULIA SOLOMON JAN SUMNER |
Catchwords: | Practice and procedure Defamation Application for leave to serve interrogatories Issue of delay Issue concerning form of questions Leave granted Turns on own facts |
Legislation: | Child Welfare Act, s 10 Rules of the Supreme Court, O 27 r 1 |
Case References: | Dalecoast Pty Ltd v Monisse [1999] WASCA 103 Hennessey v Wright [1890] 24 QBD 445 Hughes v Western Australian Cricket Association (1986) ATPR 40-726 Irvine v State of Western Australia [2000] WASCA 56 Makin v Troy, unreported; SCt of WA; (Master Adams); Library No 940256; 18 May 1994 Marriott v Chamberlain [1886] 17 QBD 145 Mulley v Manifold (1959) 103 CLR 341 Re Strachan [1895] 1 CH 439 Frater v Ward & Anor [1998] WASC 118 Howell v Haines, unreported; Court of Appeal of NSW; 15 November 1996 Nella v Kingia Pty Ltd [ 1989] ATPR 50 Seng Fai Chan & Ors v West Australian Newspapers Ltd & Ors [1998] WASC 11 Tuxworth v Australian Broadcasting Corporation (1993) 113 FLR 391 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
JAN SUMNER
Defendant
Catchwords:
Practice and procedure - Defamation - Application for leave to serve interrogatories - Issue of delay - Issue concerning form of questions - Leave granted - Turns on own facts
Legislation:
Child Welfare Act, s 10
Rules of the Supreme Court, O 27 r 1
Result:
Application allowed
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Category: B
Representation:
Counsel:
Plaintiff : In person
Defendant : Mr I Armeli
Solicitors:
Plaintiff : In person
Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Dalecoast Pty Ltd v Monisse [1999] WASCA 103
Hennessey v Wright [1890] 24 QBD 445
Hughes v Western Australian Cricket Association (1986) ATPR 40-726
Irvine v State of Western Australia [2000] WASCA 56
Makin v Troy, unreported; SCt of WA; (Master Adams); Library No 940256; 18 May 1994
Marriott v Chamberlain [1886] 17 QBD 145
Mulley v Manifold (1959) 103 CLR 341
Re Strachan [1895] 1 CH 439
Case(s) also cited:
Frater v Ward & Anor [1998] WASC 118
Howell v Haines, unreported; Court of Appeal of NSW; 15 November 1996
Nella v Kingia Pty Ltd [ 1989] ATPR 50
Seng Fai Chan & Ors v West Australian Newspapers Ltd & Ors [1998] WASC 11
Tuxworth v Australian Broadcasting Corporation (1993) 113 FLR 391
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1 HASLUCK J: This is an application by the plaintiff in a defamation action for leave to issue interrogatories. The nature of the application is reflected in a Chamber summons dated 8 August 2002 in which leave is sought in the manner allowed for by Registrar Dixon on 28 May 2002.
2 The questions sought to be asked by way of interrogatories are set out in a minute which is annexed to the application made by the plaintiff to the case management registrar dated 10 May 2002. For ease of reference, where the context so permits, I will henceforth refer to the plaintiff's list of interrogatories as being the minute of 10 May 2002. The plaintiff seeks answers to questions 1 to 18 upon the minute.
The Matters in Issue
3 The application is brought pursuant to O 27 r 1 of the Rules of the Supreme Court which provides that any party may with the leave of the Court serve notice on any other party requiring him to answer specified interrogatories relating to any matter in question between the party interrogating and the party served.
4 It is apparent from this rule that I must commence by looking at the issues reflected in the pleadings.
5 The action was commenced by the plaintiff, Julia Solomon, against the defendant, Jan Sumner, by writ of summons dated 11 July 2000. The writ of summons bore an indorsement of claim which asserts that certain words uttered by the defendant on 19 May 2000 of and concerning the plaintiff were defamatory.
6 It is therefore immediately apparent that a crucial question concerns what was said on the date in question. The plaintiff subsequently filed a statement of claim. It appears from the statement of claim that the plaintiff is and was at all material times a privately practising clinical psychologist registered with the Psychologists Board of Western Australia.
7 I digress briefly to say that it emerges from par 10.4 of the statement of defence that at all material times the defendant was an officer of the Department of Family and Community Services employed as a senior social worker at the Mirrabooka office of the department and was a member of the care for children team.
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8 The statement of claim refers to what had previously been asserted in the indorsement of claim. The words complained of are described in these terms:
"The department has had trouble with Dr Solomon before and consequently would discontinue the contract for the treatment of [RM] in the plaintiff's clinic."
9 Those are the words which are said to be defamatory of the plaintiff; that is to say, the words allegedly spoken by the defendant on or about 19 May 2000. Elsewhere in the statement of claim the meaning of the words is referred to and the imputations contended for by the plaintiff are described. There is no need for me to dwell upon that aspect of the matter for present purposes.
10 The statement of claim goes on to say that at the relevant time RM, who was a 12-year-old boy and a ward of the department, was attending a treatment programme directed by the plaintiff. This programme was conducted in the plaintiff's clinic at Noranda by the treatment facilitator Marie Gomes.
11 The plaintiff pleads that the words complained of were said to Joy Strowger, who was the foster carer for the Department and Family Community Services for the child RM. One of the imputations contended for by the plaintiff is that the words complained of contained an inference that the plaintiff was not a suitable person to carry out her profession or the treatment programme directed by the plaintiff was defective.
12 It is apparent from the plaintiff's statement of claim that an evidentiary issue is likely to emerge as to the adequacy of the reading programme being provided to the boy in question.
13 When one turns to the statement of defence, one notices an admission that Joy Strowger is the foster carer for the department for the child RM; there is a denial that the words bore or were capable of bearing the meanings contended for by the plaintiff.
14 Importantly, however, for present purposes, the defendant asserts in par 10 that if the words complained of were spoken, the publication of the words complained of to Joy Strowger was on an occasion of qualified privilege by reason of the facts and matters which are then referred to. These facts and matters include that at all material times the child was a ward of the State. Reference is made to s 10 of the Child Welfare Act and
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- the responsibilities of the department and of any person who has a child placed in such a person's care.
15 Reference is made also to the fact that the child was in the care, charge or custody of Joy Strowger pursuant to provisions of the Child Welfare Act. Some reliance is placed upon the defendant's role as an officer of the department.
16 It is said in par 10.5 that the defendant's duties were inter alia to act in loco parentis to care for wards of the State or children who were placed in foster homes. It is said that in June 1998 the defendant was assigned the child as a child under her direct supervision.
17 It is then said in par 10.7 that in or about early February 2000 an education officer in the department advised the plaintiff that Joy Strowger had taken the child to the plaintiff's Reading for Sure clinic for assessment.
18 I pause there to say that the interrogatories make mention of this programme. They describe it as the RFS programme. For ease of reference, and because the matter is described in that way in the interrogatories, I will adopt the same form of abbreviation.
19 The defence plea goes on to say that the RFS programme was a specialised reading programme provided for the benefit of children. The plea provides a summary of what an education officer had said by way of advice. Reference was made to Joy Strowger being impressed with the plaintiff and arrangements being made for Joy Strowger to have the child attend the RFS programme twice weekly. The understanding was, it seems, that the plaintiff had made a clinical diagnosis of dyslexia and attachment disorder.
20 It is unnecessary for me to repeat the entirety of what appears in par 10.7. The defence of qualified privilege having been raised, there is a broad issue between the parties as to whether the defendant spoke on an occasion of privilege. An issue of this kind is likely to require consideration of evidence as to what was the state of the defendant's knowledge at that time, and whether she had a basis for making any assertion about the suitability of the RFS programme or the role of the plaintiff in providing some assistance for the child.
21 That broad description of the matter is underlined by the fact that in the plaintiff's reply a plea is raised that the defendant acted with malice. The plaintiff thereby seeks to extinguish the defence of qualified privilege
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- which might otherwise be available to the defendant. The plea of malice inevitably directs attention to the state of knowledge of the defendant and the range of knowledge available to her when certain words were allegedly spoken.
22 It is pleaded in par 11 of the defence that, by reason of the information that had reached her, the defendant was under a duty to inform the foster carer of certain matters, including that there would be no further funding for the RFS programme because the plaintiff was not an approved practitioner. It is pleaded that Joy Strowger had a legitimate interest in being provided with information about these matters.
Legal Principles
23 When I turn to the principles which bear upon the grant of leave in respect of interrogatories, a useful starting point is Seaman's Civil Procedure at par 27.1.1. The learned author says:
"Interrogatories may only be administered with leave of the court. There may be circumstances where the need to interrogate has, at least to some extent, been obviated by the pre-trial exchange of witness statements and the standard form of pre-trial documents orders. Considerable thought needs to be given to whether it is really necessary to administer interrogatories consistent with the principles enshrined in O 1 r 4B. Great thought must go into the framing of necessary interrogatories so that they achieve the object for which they are designed without putting the other party to unnecessary trouble and expense: see Dalecoast Pty Ltd v Monisse BC9904322; [1999] WASCA 103 at [5]. However, leave may be given in circumstances where witness statements may not provide evidence which a plaintiff needs and which could be obtained by answers to interrogatories: Ugle v Western Australia BC200202351; [2002] WASCA 117."
24 The learned author notes in that passage and elsewhere that the discretion to grant leave is influenced by the system of positive case management. It is significant that reference is made to a comparatively recent decision of the Full Court in this state in Dalecoast Pty Ltd v Monisse [1999] WASCA 103.
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25 In that case Owen J reviewed the current state of the law concerning the application of case management principles to the question of granting leave to issue interrogatories. He said at par 6:
"The old law concerning leave to administer a second or subsequent set of interrogatories has to be viewed accordingly. The leave regime is administered with case management principles in mind."
26 I pause to observe that the Dalecoast case (supra), which is referred to in the written submissions of both parties before me, must be applied with some care to the circumstances I have to consider. In the Dalecoast case (supra), what was in issue was an application for leave to issue a second set of interrogatories. In the case before me, there has been no prior application for leave to issue interrogatories.
27 In reviewing the principles I must take account also of a number of matters that have been referred to me by counsel for the defendant. He submits that an interrogatory must relate to a matter in question between the parties. The right to interrogate is not confined to facts directly in issue but extends 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 145.
28 Counsel submits that interrogatories do not relate to a matter in question unless they can fairly be said to be material to support a party's case or destroy that of his opponent: Hennessey v Wright [1890] 24 QBD 445 at 447. He says further that interrogatories must be confined to seeking admissions of fact. They may not be directed to the evidence by which the material facts will be proved: Re Strachan [1895] 1 CH 439.
29 Counsel for the defendant refers also to Mulley v Manifold (1959) 103 CLR 341 as authority for the proposition that interrogatories may not be used for fishing.
30 I note also in passing that in par 27.4.1 of Seaman's Civil Procedure, the learned author observes:
"Persons interrogated have a responsibility to the court and to their opponents to answer in an open and helpful way, not in a clever and grudging way."
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31 The learned author adds:
"If an interrogatory is largely unobjectionable and the objectionable part is reasonably severable, the unobjectionable part should be answered with an objection to going further."
32 These passages reflect a general precept that if a question is reasonably clear, the party interrogated should offer the best answer possible. In other words, there is a rule reflected in the decided case that parties should deal with the administration of interrogatories in a commonsense and practical way.
Objections
33 Against this background, let me now come to the list of interrogatories and to the various objections taken by counsel for the defendant. The objections are largely reflected in the written submissions of the defendant dated June 2002. The written submissions were supplemented by further submissions made verbally at this hearing.
34 I note also that I have before me the written submissions of the plaintiff dated 25 June 2002 which seek to answer most of the matters raised by way of challenge.
35 The plaintiff is not represented and appears on her own behalf. As I understand it, she is not a person with legal training but she is a professional and has had some previous experience with the courts. She certainly does not complain of any inability to present her case forcefully and effectively.
36 Various objections are raised by the defendant. These objections can be conveniently grouped in two broad categories. First, counsel for the defendant argues that leave should not be granted because of the lateness with which the attempt to deliver interrogatories is brought forward. Counsel refers also to the absence of any adequate explanation for this state of affairs or evidentiary materials bearing upon the question of delay. I will turn to that issue in a moment.
37 A second category of objections, broadly described, is that the various interrogatories, when properly analysed, are oppressive; in form, they are not sufficient; it is said that they are often couched in language which is too vague. They are therefore embarrassing. I will come to that aspect of the matter in a moment.
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38 I recognise, as I have already foreshadowed, that many of the questions the plaintiff seeks to ask are directed to the question of qualified privilege. The questions seek to establish the range of knowledge available to the defendant at the time she spoke the words complained of. Other questions go to the matter of what inquiries she made and what was the knowledge of other departmental officers or carers.
39 Matters of this kind are a central issue, bearing in mind that a plea of malice has also been raised. I therefore have to say, before I come to the particularity of the questions, that I do see a broad relevance in questions going to the state of the defendant's understanding and knowledge about the programme being administered by the plaintiff. The question of whether the programme was likely to be of assistance to the child is relevant also.
The Delay Issue
40 Let me now return to the question of delay and lateness. This requires me to look briefly at some matters of chronology.
41 I have already mentioned that the writ of summons was issued on 11 July 2000. It emerges from the chronological materials before me that pleadings were then exchanged. One finds that the plaintiff's reply to defence was filed by November 2000.
42 I will not traverse the full range of matters touched on in the chronology, but certainly there were various exchanges concerning particulars. Steps were taken towards discovery and these extended into 2001.
43 An issue arose as to whether counsel instructed by the defendant was at liberty to continue to represent that party. There was an assertion of a conflict of interest. Ultimately, it seems, on 20 November 2001, counsel withdrew and the issue fell away.
44 I mention that aspect of the matter to indicate that certain matters of complexity intervened in the normal procedural cycle of a defamation action. I find it difficult to conclude that there has been any particular delay on the plaintiff's part in attending to various interlocutory matters.
45 In early 2002, discovery having by now been provided, the plaintiff sought to pursue the question of interrogatories which is now before me. As I have mentioned, an application was brought before the registrar in
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- May 2002. That tends to explain why several months elapsed before the matter was brought on for hearing before a Judge in Chambers.
46 I have already noted that the principles concerning case management must be kept under notice in dealing with the question of leave. Counsel for the defendant sought to rely on a number of decided cases in asserting that the matter of delay and the failure to explain the same should be sufficient to persuade the court that leave should not be granted.
47 He relied upon Hughes v Western Australian Cricket Association (1986) ATPR 40-726. Reference was also made to Makin v Troy, unreported; SCt of WA; (Master Adams); Library No 940256; 18 May 1994. In that case, a delay of 2 months which had not been sufficiently explained was thought to bar an application for leave to issue interrogatories.
48 The principles reflected in the two cases I have mentioned were adverted to and generally approved by Templeman J in Irvine v State of Western Australia [2000] WASCA 56. His Honour recognised that in certain circumstances delay would be a basis for refusing leave.
49 It is significant, however, that in the Irvine case (supra), which was a matter with a sense of urgency about it, his Honour was not persuaded that leave to administer interrogatories should be refused on the grounds of delay. He considered that the Master of the Court had not properly exercised his discretion to refuse leave in the circumstances of that case.
50 When I draw all these factors together I have to say that I am not persuaded that the alleged lateness of the application for leave to issue interrogatories is a basis for leave being refused in the circumstances of this case. There is no affidavit before me bearing upon the point particularly. However, a consideration of the chronology and of the various documents on the court files does not suggest that there has been an inordinate delay.
51 I take account of the fact that, unlike some of the previously decided cases, this is a first application for leave to issue interrogatories. It is made against a background whereby the pleadings now appear to have been finalised and discovery has been provided. This would be the usual stage at which an application for leave to administer interrogatories would be made.
52 Furthermore, in the circumstances of this case, I am not persuaded that directions for the exchange of witness statements will be sufficient to
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- address the concerns of the plaintiff in seeking to obtain admissions which may bear upon the advancement of the case she wishes to press.
53 It follows that, as to the first line of objection to the application for leave, I am not persuaded that leave should be refused.
The Form of the Interrogatories
54 I come now to the other broad category of objection as I have described it. This is the submission made by counsel for the defendant that many of the questions, on his submission, are vague and diffuse, and are therefore oppressive.
55 As I have indicated, I am of the view that the defence submission must be considered in the context of the plea of qualified privilege I have described.
56 To my mind, that plea gives rise to a degree of relevance which justifies many of the questions which are sought to be put. I bring into play also the consideration I mentioned earlier, namely, that there is an expectation in regard to interrogatories that they will be responded to in an open and helpful way, and not in an evasive or begrudging way.
57 It seems to me that the court must not be persuaded too easily that there is some point of ambiguity in a question. If the question sought to be put conveys in practical terms what is asked of the other party, and the question bears upon the issues between them, then, unless there is some specific point of ambiguity or prejudice which can be demonstrated, one should be careful about refusing leave in respect of the question sought to be put.
58 Having made those general observations, let me now come to the various particular questions.
59 Question 1 on the plaintiff's list as reflected in the minute of 10 May 2002 was amended at the hearing. In its amended form it now reads:
"As at 19 May 2000 was the defendant in her capacity as a senior social worker in the Department of Family and Children's Services acting in loco parentis for the child [RM]?
60 It was put to me that this question does not relate to a matter between the parties and it seeks in effect to raise a matter of law which must be regarded as embarrassing and oppressive. It is said the question of
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- whether the defendant was acting in loco parentis invites a response which is in the nature of a legal conclusion.
61 I am not persuaded to that view of the matter. As I have already indicated in my review of the pleadings, it is the defendant herself who raises, on the face of the pleadings, the concept of someone acting in loco parentis. A question arises as to whether the defendant's duties included that of acting in loco parentis to care for wards of the State or children who were placed in foster homes.
62 Against that background, I consider that the question permits an answer of a factual kind, and is allowable.
63 Question 2 concerns a query as to whether, prior to the enrolment of the child RM, the defendant had any discussions about the RFS programme with an education officer, Joan Bender, in respect of the proposed enrolment.
64 It is said in regard to this interrogatory, and a number of other interrogatories, that the question is not sufficiently specific in time. Technically, a submission of that kind can be advanced. However, it seems to me, in the context of detailed pleadings which establish the framework of the controversy between the parties, there cannot in practical terms be any real ambiguity as to the period sought to be addressed, which would be a reasonable period of time prior to the enrolment. I am not persuaded that the question should be disallowed as being too vague, ambiguous or oppressive.
65 To my mind, it is a question which in the context of the pleadings does admit of an intelligible answer and I will therefore allow the question. It follows from what I said earlier that the role of the education officer, Joan Bender, does appear to be a matter going to the state of the defendant's knowledge. The issue of qualified privilege gives the question a relevance. My response to question 2 flows through to question 3, which is dependent upon the answer to question 2. I therefore propose to allow both questions.
66 Question 4 concerns the activities of Joan Bender prior to the enrolment of the child and whether certain materials were made available to the defendant. Again it is said that this question in its form is too vague and ambiguous. Clearly what is being referred to is materials bearing upon the structure of the RFS programme, and it seems to me that this is a question admitting of an intelligible response. I consider that it would be
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- unduly pedantic to describe a question in that form as being too vague and ambiguous. I will allow the question.
67 The line of reasoning I have already unfolded concerning the prior point in time to the child's enrolment and the involvement of Joan Bender permits me to give a similar response to interrogatories 5, 6 and 7. It is consistent with the reasoning I have already unfolded, that those questions should be allowed, notwithstanding that in some technical sense it might be said that they were not sufficiently specific.
68 When I turn to interrogatories 8 and 9, the objection is that they do not relate to a matter in question between the parties and are therefore vague, ambiguous and oppressive.
69 Question 8 raises the query as to whether the defendant was responsible for authorising the enrolment and costs of RM's attendance at the RFS clinic. Question 9 goes on to raise some more specific queries concerning the accounts and the authorisation of payment.
70 I have to say in regard to this matter that I do see some force in the objections raised by counsel for the defendant. I will allow the asking of question 8. I will allow the asking of question 9.1. However, I do consider that the questions in par 9.2 and par 9.3 are objectionable as they go beyond what can be described as matters in issue between the parties and to my mind in this context are oppressive. Leave will be refused in respect of those two questions.
71 Question 10 introduces the issue as to what Joan Bender may have reported to the defendant concerning the assessment of the child. It follows from earlier discussion that I consider such a question is allowable. That response flows through into question 11. I consider the question contained in par 11.1 is permissible.
72 However, I consider that question 11.2, which in effect is two questions, is objectionable. The question is going to what impression the defendant may have gained from certain words that were said and it seems to me that a question couched in that form is too vague. It does not admit of a productive or relevant answer. I will disallow question 11.2.
73 Question 12 asks whether the defendant made a home visit to RM on 29 March 2000. Question 13 is dependent on the answer. It follows from earlier discussion that these questions should be allowed.
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74 Question 14 is to this effect: was the defendant informed that the plaintiff was not on the department's list of approved psychologists?
75 It follows from my earlier line of reasoning, and the broad view I take of what is raised and brought into issue by the plea of qualified privilege and the subsequent plea of malice, that, in my view, a question going to this matter is allowable. It seems to me that the specific form of the question as it is translated into more specific queries in the following question 15 is allowable and therefore leave will be granted in respect of those questions.
76 Question 16 is to this effect: was the defendant advised by any person or persons or organisation to terminate RM's enrolment in the RFS programme?
77 There is a suggestion that this is a question which is in the nature of fishing for the names of potential witnesses. I have given careful consideration to this argument. I can see force in the submission that a question of this kind in certain circumstances could be regarded as fishing.
78 I regard the matter as finely balanced. However, in the final analysis I consider that the question is allowable. I say that with the considerations in mind that I have already mentioned, namely, that the qualified privilege plea raises a number of wide-ranging issues. I consider that the plaintiff is entitled to explore these issues in the form of the question I have just described. I will therefore allow the answer to the proposed interrogatories 16 and 17.
79 Question 18 is to this effect: what were the grounds upon which the defendant transmitted to Joy Strowger certain statements. The objection to this interrogatory is that it contains an assumption of fact namely, that the words contained in par 18.1 and par 18.2 were transmitted to Joy Strowger. I consider that the objection is made out and I will allow that objection. Leave will be refused in respect of interrogatory 18.
80 Subject to the matters of objection I have identified and allowed, the other proposed interrogatories will be allowed. The question then arises as to the time frame within which the interrogatories should be answered. In summary, application for leave to administer interrogatories in terms of the plaintiff's list dated 10 May 2002 is allowed save for questions 9.2, 9.3, 11.2 and 18. The answers are to be provided within 21 days.
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