Taringa 24 Hour Medical Centre P/L and Anor v Brisbane TV Limited
[1998] QSC 98
•22 May 1998
IN THE SUPREME COURT
OF QUEENSLAND
No. 2695 of 1997
Brisbane
Before the Hon. Mr Justice Shepherdson
[Taringa 24 Hour Medical Centre P/L and Anor v Brisbane T.V. Limited]
BETWEEN:
TARINGA 24 HOUR MEDICAL CENTRE PTY LTD
(ACN 010 211 926)
First Plaintiff
AND:
ATHOLL JONOTHAN MILLER
Second Plaintiff
AND:
BRISBANE TV LIMITED
(ACN 009 684 020)
REASONS FOR JUDGMENT - SHEPHERDSON J.
Judgment delivered 22 May 1998
CATCHWORDS: DEFAMATION - Interrogatories - orders for defendant to answer - plaintiff onus of negativing good faith
Makin v John Fairfax & Sons Limited A.D.R. 50, 075 applied
Counsel:Mr P.D.T. Applegarth for the applicant
Miss A.I. Philippides for the respondent
Solicitors:Thynne & Macartney for the applicant
Freehill Hollingdale & Page for the respondent
Hearing date: 20 May 1998
REASONS FOR JUDGMENT - SHEPHERDSON J.
Judgment delivered 22 May 1998
The plaintiffs have applied for orders that they be given leave to deliver interrogatories to the defendant and that the plaintiff do answer certain of those interrogatories which are named in the summons. The summons was issued on 14 May 1998 and was heard on 20 May 1998, on which latter date I gave leave to file an amended summons.
After the summons was issued and before the hearing began the defendant had agreed that of the interrogatories numbered as listed in the summons it would answer interrogatories numbers 2(a) to 2(e) (both inclusive), 4 and 9 and by the start of the hearing had agreed to answer interrogatory No. 3(a).
A copy of the interrogatories is attached by way of schedule to these reasons. The interrogatories still in issue can be read from the schedule. Later in these reasons I shall identify the interrogatories still in issue.
Before I turn to them, I set out the background to the application - that background appears in the unchallenged affidavit evidence of Douglas Paul Spence the solicitor having charge of this action on behalf of the plaintiffs. The plaintiffs have claimed damages including aggravated and exemplary damages against the defendant which is the operator of Channel 7 Brisbane. The action arises out of the telecasting on numerous occasions prior to and on 20 March 1997 of a promotion for the “Today Tonight” programme and the telecast on 20 March 1997 as part of the “Today Tonight” programme of a story about how patients go from doctor to doctor collecting dangerous drugs.
The promotion contained the following words:-
“Announcer: On Today Tonight ... It’s just too easy. From doctor to doctor
Woman: I’ve took up to 180 pills
Announcer: Collecting dangerous drugs
Doctor: There are doctors who actively encourage it
Announcer: Wasting millions. The Brisbane doctors letting it happen. Today Tonight.”
Pleadings have been delivered. An amended statement of claim was delivered on 22 July 1997 and transcripts of the telecast of 20 March 1997 appear as schedule A to the statement of claim and as annexure A to an amended defence which was delivered on 18 July 1997. A reply was delivered on 25 July 1997.
The evidence before me shows that the case which the plaintiffs seek to establish at trial is that on the pretext of providing an example of the occurrence of “doctor shopping” the defendant, by use of a hidden camera, recorded a consultation which its “researcher” one Erina Flessas, had with the second plaintiff and which took place on the premises of the first plaintiff on 19 March 1997. The plaintiffs’ case is that Ms Flessas took part in a normal consultation in which she was asked about her history, in which she was examined and in which she was given appropriate advice about possible changes to her life style and that, in the circumstances, the second plaintiff appropriately prescribed to her Normison tablets with appropriate directions as to their usage. The plaintiffs’ case is that the secretly filmed tape was selectively edited and gave the impression that the second plaintiff prescribed such tablets within seconds of Ms Flessas presenting herself. The plaintiffs’ solicitor in his affidavit has said by way of example that the unedited tape records the second plaintiff stating, in the course of enquiring about the “patient’s history”:
“I can get you to sleep at night, that’s not hard with tablets, but what’s keeping you awake, where’s the problem, where’s the stress, what’s happening, why are there tears occasionally.”
According to the allegations in the schedules to the statement of claim the defendant edited this passage so that the second plaintiff is recorded as saying:-
“I can get you to sleep at night that’s not hard with tablets.”
In addition, it is alleged that the tape was edited so that it appears that the second plaintiff’s words “we’ll give you some Normison to try and help you to sleep” occurred within seconds of the “patient” complaining of “feeling very tired having a lot of trouble sleeping”.
The defendant has pleaded substantive defences of qualified privilege and in reply the plaintiffs allege and propose to prove at trial that the promotion and the telecast were made with an absence of good faith in that:-
“(a)the defamatory imputations published concerning the plaintiffs were not relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter;
(b)the manner and extent of the broadcast was excessive;
(c)the defendant was actuated by ill-will or by some other improper motive;
(d)the defendant believed the defamatory matter concerning the plaintiffs to be untrue or was recklessly indifferent as to its truth or falsity.”
Paras.21, 28, 29, 30 and 33 of their amended statement of claim show the plaintiffs propose to prove at trial that the defendant:-
(a)included film of the plaintiffs in the broadcast when it had no good reason to do so;
(b)included file of the plaintiffs in the broadcast when it had no grounds to suspect that the plaintiffs were guilty of any wrongdoing;
(c)made the broadcast without making any or any adequate enquiry about whether the plaintiffs were guilty of any wrongdoing;
(d)made the broadcast knowing that the imputations which they conveyed concerning the plaintiffs were false, or with reckless indifference as to their truth or falsity;
(e)selectively edited tape in order to give the impression that the second plaintiff prescribed tablets within seconds of the patient presenting herself.
The plaintiffs’ submit that in order to succeed on these issues it is essential for them to obtain relevant admissions concerning the defendant’s pre-broadcast conduct, including the process by which the matter was “researched” and the beliefs of those responsible for the telecast as to whether the plaintiffs had engaged in the practices referred to in the promotion and in the telecast.
I should at this stage say that Douglas Paul Spence (on whose affidavit the plaintiffs rely), was admitted as a solicitor on 17 December 1970 and since then has acted in numerous defamation actions on behalf of both plaintiffs and defendant including many actions involving media defendants in which qualified privilege was pleaded as a defence. He has sworn that it is his experience that a plaintiff’s prospect of proving an absence of good faith depends upon ascertaining, prior to trial, accurate details in relation to the manner in which the matter complained of was investigated, the inquiries made by the defendant, the manner in which material was edited and the processes by which a decision was made to publish the matter in question. He has sworn that in particular it is essential to establish the steps taken by the defendant to verify the truth of assertions contained in the matter complained of, including, in particular, statements concerning the plaintiff and to establish the state of the defendant’s knowledge and belief in relation to the assertions contained in the broadcast particularly assertions which either intentionally or unintentionally concern a plaintiff. Mr Spence has sworn that in his experience these matters which I have just mentioned tend to be peculiarly within the knowledge of the defendant and that without obtaining relevant admissions in this regard, a plaintiff is at risk of failing to discharge the onus of proof in relation to the issue of good faith. He further swears that without appropriate admissions a plaintiff is at risk that the issue of “good faith” will not be left to the jury or if it is left to the jury the jury may infer that the defendant’s conduct was not reckless or otherwise lacking in good faith.
Mr Spence also swears that the obtaining of relevant admissions in relation to these matters is also essential to properly prepare a plaintiff’s case on damages particularly where a claim is made for aggravated and exemplary damages.
I now turn to what Mr Spence has deposed in relation to the present action. He has sworn there is no assurance that the defendant will call as witnesses at trial any witnesses including its employees who were responsible for researching, preparing, editing, previewing and authorising the telecast complained of; but that even if all or some of those witnesses are called he is concerned that it will be too late for the plaintiffs to investigate assertions which are made in the course of the defendant’s case concerning its pre-broadcast conduct and in particular the steps taken by it to verify the accuracy of claims made in the telecast. He has sworn that unless the plaintiffs are aided by answers to interrogatories concerning the defendants pre-telecast conduct including the extent of its “research” and whether it had any and if so what grounds to suspect the plaintiffs of wrongdoing, the plaintiffs will not be in a position to call evidence in relation to these matters in its case or adequately prepare for the cross-examination of the defendant’s witnesses. In his affidavit he has mentioned by way of example that the plaintiffs suspect that the assertion in the telecast that the defendants researcher visited “a series of doctors complaining about nothing specific” and that “within minutes two out of three doctors were writing up prescriptions for the kind of drug doctor shoppers abuse” is unsubstantiated and was known to be false. Mr Spence deposes that the plaintiffs wish to guard against surprise at trial by evidence being called during the defendant’s case concerning those matters.
It is not the first time the matter of interrogatories in this action has come before this Court. On 23 April 1997 there was a hearing before Mr Justice Dowsett in which the plaintiffs sought to obtain leave to administer interrogatories a draft of which had been delivered to the defendant’s solicitors prior to the hearing. Mr Spence has sworn that the defendant argued before his Honour that it was premature to grant leave to interrogate and that a number of matters about which interrogatories were directed might be admitted. This assertion by Mr Spence has not been challenged.
On 27 October 1997 the plaintiffs filed a summons seeking leave to deliver interrogatories in the form appearing in the schedule to these reasons. This application brought forth a cross-application by the defendant for the action to be referred to mediation. Both before and at the hearing of these applications on 11 November 1997 the defendant’s solicitors and counsel submitted to the effect that the defendants wished to mediate the matter, that many judges take the view that matters can be mediated without discovery let alone interrogatories, that whatever questions the plaintiffs wished to ask the defendant can be asked as part of the mediation process and that was the course the defendant wished to take in relation to the interrogatories sought to be delivered and that the defendant did not then accept that the plaintiffs had a right to insist upon answers to interrogatories at that stage.
On 11 November 1997 Mr Justice Helman directed the parties participate in a mediation and that occurred before Mr Keane QC on 28 November 1997. Thereafter there was correspondence relating to the interrogatories, some of which were answered by the defendant.
Before me the plaintiffs assert, through their solicitor Mr Spence, that they propose to prove amongst other things that the research for the telecast was not as claimed in the broadcast, was grossly inadequate, failed to disclose wrongdoing by the plaintiffs and that preparation of the story and the editing of file was undertaken recklessly or with a deliberate knowledge of the falsity of the defamatory matter concerning the plaintiffs. As Mr Spence points out, in order to present its case the plaintiffs must call evidence in relation to these matters which he submits are peculiarly within the defendant’s knowledge and that the only convenient means of doing so is to interrogate the defendant.
I now turn to the interrogatories in question.
Interrogatory 2(j)
The defendant has agreed to answer this interrogatory.
Interrogatory 3(a)
Again the defendant has agreed to answer this interrogatory.
Interrogatory 3(b) 3(d) and 3(e)
These interrogatories address the defendant’s knowledge and belief as to the imputations pleaded by the plaintiffs in paras.8 and 14 of the amended statement of claim. Mr Applegarth by way of basic submission has said that interrogatory 3 inquires in relation to the defendant’s knowledge or belief in relation to the defamatory matter which the plaintiffs propose to prove was conveyed by the promotion and the telecast. He submits that the obtaining of answers to these interrogatories is essential to their ability to prove an absence of any honest belief in imputations conveyed concerning the plaintiffs and/or the recklessness of the defendant’s conduct.
The defendant has objected to answering these interrogatories 3(b) 3(d) and 3(e) on the basis that as so framed they are vexatious. Miss Philippides relies particularly on an unreported decision of Hunt J in the Supreme Court of New South Wales - Howard v Nationwide Publishing Service - delivered on 26 February 1987 in which the interrogatory in question was:-
“At the time of publishing the [first] matter did you believe or have the opinion (specifying which) that.”
And there followed a series of statements expressed in the precise terms of the imputations pleaded by the plaintiff.
At p.4 of his reasons Hunt J said:-
“... before an answer to an interrogatory along the lines here administered would be ordered, a defendant would have to be asked whether any consideration had been given to the possibility that the matter complained of could be understood as conveying the particular imputation. Then, in the event of an affirmative answer or in a case where it was reasonably foreseeable that the imputation could be conveyed (and notwithstanding the denial that the defendant intended to convey the imputation upon which the plaintiff relies), a further question could be asked as to whether the defendant had any belief in its truth: No such introductory interrogatory was administered in this case”
Miss Philippides points out (correctly) that in interrogatories 10 and 11 a preliminary question of the type referred to by Hunt J in the above passage is indeed asked.
In the case before me the defendant denies the imputations pleaded by the plaintiffs and in the view which I take of interrogatories 3(b) 3(d) and 3(e) the objection taken is valid.
Interrogatory 3(f) and 3(g)
These interrogatories, directed as they are to the defendants knowledge or belief prior to the telecast, each refers to the plaintiffs or either of them being guilty of any and if so what “wrongdoing” and whether the plaintiffs or either of them had so conducted themselves as to give rise to a suspicion that they were guilty of any and if so what wrongdoing. Objection is based on the submission that the word “wrongdoing” is ambiguous, embarrassing and irrelevant. The interrogatories are based on paras. 29 and 30 of the amended statement of claim which allege that the defendant included film of the plaintiffs when it had no grounds to suspect the plaintiffs were guilty of any wrongdoing and the defendant made broadcast without making any or any adequate enquiry about whether the plaintiffs were guilty of any wrongdoing. The word “wrongdoing” is one in common use. In the Shorter Oxford English Dictionary “wrong-doer” is defined as follows:-
One who commits wrongful, unjust or blameworthy acts; one who transgresses or offends against the moral law;
Law. One who is guilty of a wrong, tort or trespass; a law breaker.
The thrust of the transcript of the telecast (as exhibited to the amended statement of claim) and as pleaded by the plaintiffs is that the second plaintiff in particular was more than ready promptly to prescribe dangerous drugs to what are called “doctor shoppers” the latter people collecting dangerous drugs. It is said at the commencement of the telecast that patients going from doctor to doctor collecting dangerous drugs - “costing us millions”.
The allegations in para.14 (which relate to the telecast) are such that if any one of them were made out the reasonable man in the street would regard the conduct the subject of the imputation as being wrongdoing. In my view the reference to “wrongdoing” is not ambiguous and when read in the light of the allegations in para.14 of the amended statement of claim the defendant is well able to answer these interrogatories. I propose to order that the defendant do answer interrogatories 3(f) and 3(g).
Interrogatories 10 and 11
I propose to deal with these two interrogatories at the same time. Interrogatory 10 is directed to the intentions of the defendant in telecasting the promotion and the imputations pleaded in para.8 of the amended statement of claim. Interrogatory 11 is directed to intentions of the defendant in telecasting the telecast and the imputations pleaded in para.14 of the statement of claim. I note also that in para.23 of the amended defence an alternate plea is made that if either or both the plaintiffs are identified by the promotion or the telecast or both, the publication of the promotion and the publication of the telecast were made in good faith. The plaintiffs of course have the onus of proving absence of good faith. I accept Mr Applegarth’s submission that the intention of the defendant to convey particular imputations concerning the plaintiffs is highly relevant to the issue of good faith and that whether or not the defendant intended to convey particular imputations and/or gave any consideration to the possibility that the programme might convey defamatory imputation concerning the plaintiffs is a matter peculiarly within the knowledge of the defendant. I respectfully adopt what was said by Hunt J in the second schedule of his judgment in Makim v John Fairfax & Sons Limited Australian Defamation Reports 50, 075 at pp.40, 534-5. The second schedule is headed “the defendants state of mind”. Relevantly his Honour said:-
“The defendant must usually have an honest belief in the truth of what he published. That belief is, however, not necessarily co-extensive with his belief in the truth of the imputations which the jury finds were in fact conveyed to the ordinary reasonable reader. His belief must be looked at rather in the context of the imputations which he intended to convey.”
(his Honour then referred to certain authorities for that statement).
His Honour continued:-
“It is for that reason that a plaintiff is entitled to interrogate the defendant not only as to his intention to convey the imputations pleaded by the plaintiff (Casey v ABC (1981) 1 NSWLR 305 at 308; Lewis v Page (Hunt J 19 July 1989 unreported) at 9-10; but also as to the imputations which he intended to convey: Palmer v John Fairfax & Sons Limited (1986) 5 NSWLR 727 at 731; Brazel v John Fairfax & Sons Limited (Hunt J 17 February 1989 unreported) at 1-2; Lewis v Page at 10; and (as relevant to the reasonableness of his conduct where statutory qualified privilege is pleaded, and where it is reasonably foreseeable that a particular imputation could be conveyed) as to whether he gave any consideration to the possibility that the matter complained of would be understood as conveying such an imputation, his belief in the truth of that imputation and what steps he took to prevent the matter complained of from being so understood: Howard v Nationwide Publishing Services Pty Ltd (Hunt J, 26 February 1989, unreported) at 3-4.
If no evidence is led of the defendant’s intention to convey any particular imputations, it is open to the jury to conclude that he intended to convey those imputations ultimately found in fact to have been conveyed to the ordinary reasonable reader: Evatt v John Fairfax & Sons Limited (Hunt J, 19 June 1985 unreported) at 5; (20 June 1985 unreported) at 14. The same inference would be open if the jury did not accept evidence given of the defendants intention ... .”
On the aspect of the plaintiffs’ being at risk of failing to discharge the onus of proof in relation to the issue of good faith, I respectfully adopt the following statement of Thomas J. in Kerrisk v North Queensland Newspaper Co Ltd (1992) 2 Qld.R 398 at 410:-
“The vital point that emerges at this point of preparation for the trial is that it is essential from the plaintiff’s point of view that if such evidence exists, he be in a position to present a positive case showing a lack of good faith on the part of the defendant. It should not be assumed that he would at trial be granted the indulgence of splitting his case. Nor could he safely assume that the defendant would call evidence whereupon counsel’s cross-examination would fill the deficit. It could not be assumed that cross-examination would be effective without some prior information concerning the source allegedly relied on, and the dealings of the newspaper company in relation to the matter.”
These interrogatories Nos. 10 and 11 as drafted are ones which in my view the plaintiffs are entitled to have the defendant answer. I reject the defence argument that interrogatories 10(a), 10(c), 11(a) and 11(c) are unnecessary because the defendant has pleaded the imputations on which it relies (paragraphs 13, 14, 15 and 19 of its defence).
Interrogatory 13
This interrogatory is directed to a photocopy of a newspaper article which is a report of an interview with a man named in the article as Les Riley and described in the article as “Channel 7 Brisbane boss”. The interrogatory is directed to the following words appearing in that article and in the article attributed to Riley as his actual words:-
“That one-hour block, to a large degree, determines how you will perform for the rest of the night.”
“Not totally but if you can do well from 6 pm to 7 pm you’ve got a better than even chance of doing well for the rest of prime time. News and Today Tonight are the two local programmes that we can influence very heavily. Our concentration on those areas has paid off.”
Mr Spence in his affidavit on which the plaintiffs rely in support of the present application, has sworn that the plaintiffs propose to prove at trial that false and sensational allegations were made against them as a means of boosting the ratings of “Today Tonight” and thereby gaining financial advantage for the defendant. He swears that interrogatory 13 relates to what appears to be the publicly expressed position of the defendant’s managing director. He swears that such an interrogatory is a convenient means to avoid the need to subpoena the journalist who wrote the article referred to in the interrogatories. He further swears there is no assurance that the defendant will call its managing director as a witness to permit him to be cross-examined concerning these matters
The defendant has proposed that the plaintiffs can subpoena Mr Riley in their case. In my respectful view it would be naive to believe that the plaintiffs would be prepared to do this. Were the plaintiffs to adopt that course they would be putting Riley forward as a witness of truth and furthermore probably would have no knowledge of exactly what he intended to say once in the witness box.
On 24 March 1998 the plaintiffs’ solicitors asked that the defendant admit that Riley made the quoted statement but no informal admission was made. By the time of hearing before me, no such admission had been made even with a full reservation by the defendant of its rights to argue relevance. I accept that the motivation of the defendant to boost its ratings and profit at the expense of individuals who may well be defamed - individuals such as the plaintiffs - is an integral part of the plaintiffs’ case. It seems to me also that the interrogatory while arguably going to the matter of good faith is also relevant to the issue of aggravated and exemplary damages claimed by the plaintiffs.
Interrogatories 14(b)(i) 14(c)(i) and 14(d)
The first of these seeks to elicit the net asset value of the defendant, the second seeks to elicit the net profits earned by the defendant in the financial year ended 30 June 1996 and in the financial year ended 30 June 1997 and the third seeks to elicit what revenue, on average, was earned by the defendant from advertising broadcast between 6 pm and 7 pm on week day evenings in March 1997.
As to the first two of these, Mr Spence has sworn that the defendant has provided upon disclosure certain financial statements in relation to the year ended 30 June 1996 but none in relation to the financial year during which the programme was broadcast or subsequent periods. He further swears that answers to interrogatories are a convenient means of providing this information in a jury trial and will avoid the necessity to tender large volumes of financial documents (if and when they are disclosed). As to interrogatory 14(d) he swears the defendant hasn’t given disclosure of financial information, ratings cards or any other documents which enable the plaintiffs to ascertain the revenue which on average it earned during the news and current affairs hour during which the matter complained of was broadcast.
Miss Philippides took the point that the matters enquired into in these three interrogatories were not the subject of a particular pleading. However, in my respectful view they are relevant to an award of exemplary damages and a case for such damages has been pleaded. Mr Applegarth has referred to a number of authorities including XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471 in which a statement by Lord Diplock in Broome v Cassell was cited with approval - it was to the effect that the social purpose of an award of exemplary damages is to “teach a wrong doer that tort does not pay”.
I accept also Mr Applegarth’s submission that evidence of the defendant’s means is relevant not only to show that the defendant can afford to satisfy a substantial judgment “but to show what sum will be a sufficient deterrent against repetition of the conduct that attracts the award” (citing XL Petroleum at 472).
In regard to the third interrogatory namely 14(d), I propose to order that the defendant answer this interrogatory but exclude any reference to “and/or by the Seven Network”.
In summary then the orders I make are:-
1.I order the defendant do answer interrogatories numbered 2(a)-(e) both inclusive 2(j) 3(a) 3(f) 3(g) 4,9,10,11,13, 14(b)(i) 14(c)(i) and 14(d) excluding from 14(d) the words “and/or by the Seven Network” in the interrogatories a copy of which is Exhibit DPS 1 to the affidavit of Douglas Paul Spence, sworn herein on 7 November 1997.
2.I further order that the defendant file and serve its affidavit sworn in answer to such interrogatories within 14 days from today.
I heard argument on costs and in my view costs of this application should follow the event. I therefore order the defendant to pay the plaintiffs’ costs of and incidental to this application to be taxed.
The following order is made by consent to the parties:-
That the plaintiffs have leave to further amend their statement of claim to plead in para.18 thereof the following words:-
“The Second Plaintiff developed an acute stress reaction and an adjustment disorder with anxious and depressed mood. After the telecast was broadcast the Second Plaintiff’s blood pressure was found to be considerably raised and he commenced treatment for hypertension which is suspected to have been caused by the stress caused by the promotion and telecast.”
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