Waterhouse v The Herald and Weekly Times Limited

[2000] NSWSC 546

CITATION:	Waterhouse v The Herald and Weekly Times Limited [2000] NSWSC 546
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20009/97
HEARING DATE(S):	9 June 2000
JUDGMENT DATE:	19 June 2000
PARTIES :	Gai WATERHOUSE - Plaintiff THE HERALD AND WEEKLY TIMES LIMITED - Defendant
JUDGMENT OF:	Simpson J at 1

COUNSEL :	Mr C Evatt - Plaintiff Mr A Henskens - Defendant
SOLICITORS:	Ward Maxwell & Co - Plaintiff Corrs Chambers Westgarth - Defendant
CATCHWORDS:	Defamation - interrogatories - adequacy of answers - relevance - whether plaintiff has sued publishers of other allegedly defamatory imputations - claim for aggravated damages - relevance of interrogatories to comment defence - discovery - adequacy of affidavit of discovery - obligations of parties in respect of affidavit of discovery - obligations of solicitors in respect of affidavit of discovery - Holding List - implications of consent to matter being placed in Holding List - obligations on parties proceedings in Defamation List - necessity to prepare with diligence - purpose of Defamation List - privileges accorded to parties to defamation proceedings - duties attendant thereon.
LEGISLATION CITED:	Defamation Act 1974
CASES CITED:	Seidler v John Fairfax & Sons Limited [1983] 2 NSWLR 390 Dingle v Associated Newspapers Limited [1964] AC 371 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Chakrovati v Advertiser Newspapers Ltd (1998) 193 CLR 519 Redmond v Uebergang [1984] 1 NSWLR 311 Freuhauf Finance Corporation Pty Limited v Zurich Australian Insuirance Limited (1990) 20 NSWLR 359
DECISION:	Plaintiff to answer interrogatories 14, 21-26 inclusive and 30-32 inclusive. The answers are to be provided within fourteen days of the date of delivery of these reasons.; Plaintiff to answer interrogatories 14, 21-26 inclusive and 30-32 inclusive. The answers are to be provided by 16 July. Costs reserved.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Defamation List

SIMPSON J

Monday 19 June 2000

20009/97

Gai WATERHOUSE v THE HERALD AND WEEKLY TIMES LIMITED

Judgment

HER HONOUR :

1    By statement of claim filed on 10 January 1997 the plaintiff, Ms Gai Waterhouse, has sued the defendant, the Herald and Weekly Times Limited, in defamation as a result of a news report published by the defendant in the “Sunday Herald Sun” on 27 October 1996. A defence was filed on 27 November 1997, and a reply on 5 December 1997.

2 A trial of the issues committed to a jury by s 7A (3) of the Defamation Act 1974 (“the Act”) concluded on 11 February 2000, with the jury finding that certain imputations defamatory of the plaintiff were conveyed by the item.

3    On 28 April 2000, by the consent of both parties, the matter was placed in the Holding List from where it may be expected that a hearing date will be allocated for a trial of the issues which remain for determination by the court. It is implicit, when parties consent to the placement of a matter in the Holding List, that they agree that it is ready for hearing, or that only minor matters, which can be attended to without delaying the hearing, remain outstanding. The defendant’s consent to the placement of these proceedings in the Holding List was given conditionally, the condition being that the plaintiff would, within two weeks of that date, provide answers to interrogatories which had been administered two weeks previously. On 12 May 2000 the plaintiff provided her answers to the defendant’s interrogatories. In respect of a number of the interrogatories she objected to answering, on the ground that the interrogatory was frivolous, vexatious, oppressive and does not relate to any issue in the proceedings.

4    The defendant now seeks orders of three kinds. It seeks an order that the plaintiff provide further answers to certain interrogatories; that the plaintiff give further and better discovery; and that the matter be removed from the Holding List.

5    In order to understand the issues that arise for determination, it is necessary to know a little background. What follows is drawn from material contained in an affidavit filed in support of the defendant’s applications, sworn by Mr Stefan Balafoutis, a solicitor employed by the defendant’s solicitors, and from correspondence and documentation marked as Exhibit A, attached to written submissions filed on behalf of the defendant.

6    The plaintiff is by occupation a racehorse trainer. In or about September 1996 a race meeting took place at the Rosehill Racecourse. One of the races was called “the Shannon Quality Handicap.” Three horses trained by the plaintiff took part in the race. One of these was called Gossips. Another was called Juggler. The race was won by Juggler. As a result of concerns about the manner in which Gossips had been ridden by the jockey, Forrester, a Stewards’ inquiry was launched. Eventually both the plaintiff and the jockey were found guilty of some form of impropriety in relation to the race, the allegation being that Gossips did not race on its merits, but was ridden in such a way as to favour Juggler’s victory.

7    Subsequently the plaintiff and the jockey appealed the findings of the Stewards’ inquiry. The plaintiff was successful in her appeal, and was found not to have been guilty of the misconduct alleged. The jockey, who had been disqualified from riding for a period of three months, was successful only to the extent of having the period of disqualification reduced.

8    It is established by the jury verdict that the publication on which the plaintiff sues conveyed imputations to the effect that:

(i) the Plaintiff was a party to Gossips not running on its merits in the race; and

(ii) the Plaintiff sacrificed her jockey in order to save herself.

The latter imputation appears to be a reference to the manner in which it is alleged that the plaintiff conducted her defence during the Stewards’ inquiry and the subsequent appeal.

9    In the statement of claim the plaintiff claims damages for injury to her reputation, and claims aggravated damages. She particularises the latter as arising from the falsity of the imputations, the defendant’s knowledge of the falsity of the imputations, the reckless indifference of the defendant to the truth or falsity of the imputations, and “the excessive language, sensationalism and tone of the matter complained of”. Although there does not appear in the statement of claim an express claim for damages to compensate the plaintiff for hurt feelings, it may be assumed that she will, as is usual, put her case in that way. An assertion to that effect was made, without dissent, by counsel for the defendant during the course of the present proceedings.

10    The defendant relies upon a variety of defences. These are:

(i) that the imputations were published under such circumstances that the plaintiff was unlikely to suffer harm (s 13 of the Act);

(ii) qualified privilege (s 22);

(iii) qualified privilege, as provided by the common law;

(iv) comment (s 32 and 34 of the Act).

It is to be observed that no defence that asserts that the imputations were substantially true is pleaded.

Interrogatories

11    The interrogatories administered by the defendant numbered thirty-six. Some were answered in such a way as not to give rise to any complaint by the defendant. However, the defendant contends that others call for more complete responses. In each case, where the adequacy of the response to an interrogatory is in question, the answer given by the plaintiff was that she objects to answering on the basis that the interrogatory is frivolous, vexatious, oppressive and does not relate to any issue in the proceedings.

The interrogatories in contention fall into three groups.

12    (a) Interrogatories 3-6, 9-12, 17-18: By way of preface to these interrogatories the plaintiff was referred to three publications of material similar in substance to the matter complained of, said to have been published by persons or companies other than the present defendant. In one, extensive reference was made to statements reportedly made by a person called Ray Murrihy, identified in the document as the Chief Steward (presumably of the Australian Jockey Club (“AJC”)). Each of the publications appears to relate to the same subject matter as the matter complained of, and to contain imputations of a kind the same as or similar to those the subject of the present proceedings. The interrogatories in question ask the plaintiff if she has sued either the publisher of these articles, or Mr Murrihy (interrogatories 3, 5, 9, 11 and 17; “the ‘have you sued?’ questions”); and, if not, why not (interrogatories 4, 6, 10, 12: “the ‘if not, why not?’ questions)”.

13    The plaintiff answered each of the ‘have you sued?’ questions by saying that she had not brought proceedings for defamation in respect of any other publication of the matter to the same purport or effect as that complained of, and otherwise objected to answering the interrogatory on the basis previously expressed. She answered each of the ‘if not, why not?’ questions with that same objection.

14 The administration of interrogatories is authorised by Part 24 of the Supreme Court Rules. Rule 1 permits the administration of interrogatories “relating to any matter in question” between the interrogating party and the party interrogated. The test is a relatively wide one; an interrogatory is one “relating to any matter in question” between the parties if its subject matter has some relevant association or connection with an issue: Seidler v John Fairfax & Sons Limited [1983] 2 NSWLR 390. Resolution of this issue accordingly centres upon whether the defendant can establish a relevant association or connection between any issue arising on the pleadings and, firstly, whether or not the plaintiff has sued either the publishers or Mr Murrihy in relation to the other publications; and secondly (if she has not) her reasons for not doing so.

15 The defendant argues that the challenged interrogatories relate to the plaintiff’s claim for damages for hurt to her feelings and for aggravated damages, and relies upon the manner in which the plaintiff has particularised her claim for aggravated damages: that is, by reference, inter alia, to the falsity of the imputations, and the defendant’s alleged knowledge of, or reckless indifference to, that falsity. Just what answers the plaintiff might give, if required to answer the interrogatories, ought not to be the subject of speculation, but counsel for the defendant offered, as justification for the ‘if not, why not?’ questions (as to which the ‘have you sued?’ questions are a necessary preliminary) that the plaintiff might answer that she had not commenced proceedings because she was not hurt or offended or embarrassed by the other articles, and that this would then be material going to the veracity of any evidence she might give concerning the hurt or offence or embarrassment caused by the matter complained of. In my opinion this argument neatly demonstrates that the defendant is, by the ‘if not, why not?’ questions, seeking to use the interrogatories as a means of obtaining material for cross-examination of the plaintiff. This is an impermissible use of the procedure provided by Part 24.

16 Generally speaking, whether a plaintiff has been defamed by a publication or publications other than that complained of is not material to the assessment of damages: Dingle v Associated Newspapers Limited [1964] AC 371: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519. A distinction is, however, to be drawn between the use of such evidence to isolate the harm done by the publication the subject of the action, which is permissible (Dingle, pp 397-398, 405-406, 410) and the use of such evidence to establish that the plaintiff’s reputation was already damaged and the damages to be awarded should consequently be mitigated in favour of the defendant, which is not permissible (Dingle, pp 396, 398, 410-411, 413, 416-417, 417-418).

17 It may reasonably be inferred, from the sequence of the interrogatories, that the defendant anticipated the negative answers that the plaintiff eventually in fact gave to the ‘have you sued?’ questions, and those questions are asked principally as a foundation for the ‘if not, why not?’ questions. Although the plaintiff’s answers to the ‘have you sued?’ questions is raised as an issue in the present application, and the responses given contain a partial objection, it seems to me that the answers given to those questions are complete and it is unnecessary to take up any further time on that issue. I would, however, note that interrogatories of that nature are permissible under s 48 of the Act which specifically makes admissible on behalf of a defendant, in mitigation of damages, evidence that a plaintiff has already recovered damages, or has brought proceedings for damages, or has received or agreed to receive compensation, for defamation in respect of any other matter to the same purport or effect as the matter complained of.

18    I am, as I have indicated, satisfied that the answers given to those interrogatories are adequate.

19    I am unpersuaded that any relevant purpose is to be served by requiring answers to the ‘if not, why not?’ interrogatories, that is, interrogatories 4, 6, 10 and 12, and I decline to make any orders in relation to those interrogatories.

20    (b) Interrogatory 14

Interrogatory 14 is in a different category. It cannot be considered in isolation from interrogatory 13 in which the plaintiff is asked whether any other person had spoken to, or behaved towards, her in such a way as to indicate that that person had read or learned of the matter complained of, had identified the plaintiff as the person referred to, or had thought less of her. The plaintiff replied to this interrogatory in the affirmative.

21    Interrogatory 14 is predicated upon affirmative answers to any of those parts of interrogatory 13 relating to others having identified or thought less of the plaintiff, and asks, in relation to “each and every occasion” referred to, for the name of the person concerned, the effect of the word spoken or a description of the behaviour towards the plaintiff, the date and location of the communication and the identity of any persons present, anything said or done that had the effect of injuring the plaintiff’s feelings, and for a copy of any communication that was in writing. The plaintiff initially answered this interrogatory, but the original answer has been superseded by a supplementary answer in the following terms:

“14B. Many persons spoke to the Plaintiff in the weeks following the publication of the article complained of on 27 October 1996. The Plaintiff does not remember the exact dates but the conversations took place at the racecourses at Flemington, Caulfield, Randwick and Rosehill. The Plaintiff either does not know or cannot remember all their names but the names she does remember were Dorothy Ryan, Steve Cropley, Simon Beazley, Frank Stein, Denise Martin, Sue Lloyd-Williams and Michael Christians. They said words to the effect “The Sunday-Herald Sun say you hooked up Gossips”, “Is it true?”, “According to the Sunday-Herald Sun you should not have been cleared”, “You dumped Forrester to save yourself”, “The Sunday-Herald Sun must have some new information”, and “Are you in trouble again?”
After publication of the matter complained of the Plaintiff attended race meetings in Melbourne in her capacity as a trainer. When she entered the mounting yard to give instructions to jockeys voices from the crowd called out to her words to the effect “You’ve had it”, and “Don’t pull this one up Gai”. Some of the crowd called out remarks to the jockey in the Plaintiff’s hearing. These remarks were to the effect “Watch out or she’ll dump you”, and Don’t trust her”. To the best of the Plaintiff’s recollection the jockey was Mr Dye.”

22    This response is plainly inadequate. The plaintiff is obliged to give a separate set of answers to the questions in relation to each occasion on which any person had spoken to or behaved towards her as set out in interrogatory 13. The global answer given by the plaintiff is quite insufficient. The defendant is entitled to precise details of every remark, conversation, or instance of behaviour that led to the plaintiff answering interrogatory 13 in the affirmative. The plaintiff must provide an adequate answer to this interrogatory.

23    (c) Interrogatories 21-26, 30-32, 35-36

Interrogatories 21-25 and 30-32 ask, in various ways, and for various details, about the instructions given by the plaintiff, as trainer, to the jockey riding Gossips. Interrogatory 26 asks whether the plaintiff was the trainer of Juggler. Interrogatories 35-36 ask about the case put by or on behalf of the jockey to the Stewards’ inquiry, and/or the appeal, in response to the allegations he faced.

24    The immediate impression created by this set of interrogatories is that they are directed to facts and matters that might establish a defence of justification. But no such defence is pleaded.

25 The defendant argued that the truth or falsity of the imputations is put in issue by the plaintiff’s particularisation of her claim for aggravated damages. I have difficulty with the proposition that a defendant, while not seeking to justify the imputations, can nevertheless assert their truth in response to a claim for aggravated damages. Moreover, I doubt that the falsity alone of the imputations would be capable of establishing a claim for aggravated damages, although a defendant’s knowing publication of false imputations, or recklessness as to their truth or falsity, is capable of supporting such a claim. Answers to these interrogatories will not advance the defendant’s defence to the claim for aggravated damages. For an analogous discussion, see Redmond v Uebergang [1984] 1 NSWLR 311.

26    It remains to be considered whether the plaintiff can be obliged to answer those interrogatories as relating to some other question in the proceedings.

27    The defendant then argued that the truth of the imputations is material to the defence of comment. This is not the occasion to consider the merits of the defence of comment as pleaded. Consideration of that issue must, for present purposes, be confined to a consideration of whether the answers to the interrogatories might be reasonably capable of throwing light on any of the issues relevant to that defence. The truth of the underlying facts on which a defence of comment will be based is one such matter.

28    There is considerably more substance to this argument. Interrogatories related to the accuracy of the substratum of facts on which the defendant proposes to rely to establish the defence of comment are interrogatories relating to a matter in question between the parties. I propose, therefore, to direct the plaintiff to answer interrogatories 21-26, and 30-32.

29    Interrogatories 35 and 36 relate to an evaluation of the manner in which the jockey put his case in the Stewards’ inquiry in answer to the allegations against him. I am unable to see how these interrogatories relate to any matter in issue between the present parties, and I decline to make any order in respect of them.

Discovery

30 On 17 February 2000 the plaintiff swore an affidavit of discovery. SCR Pt 23 governs the rights and obligations of parties to proceedings in relation to discovery and inspection of documents. The current Pt 23 was inserted in the Rules in July 1996 and applies to all proceedings commenced on or after 1 October 1996 and therefore to the present proceedings. Rule 3 states, in explicit detail, what is required of a party in order to comply with an order for discovery. Observance of the obligations of a party, and of the rights of the opposing party, is of particular importance because it is only to a very limited extent that a court will go behind the claims made in an affidavit of discovery: see, for example, Fruehauf Finance Corporation Pty Limited v Zurich Australian Insurance Limited (1990) 20 NSWLR 359; and see generally the notes to Rule 3 at Ritchie’s Supreme Court Procedure NSW, para 23.3.20.

31    The defendant seeks an order for further and better discovery on the basis that the information contained in the plaintiff’s affidavit is so scanty and skimpy that an inference should be drawn that she has not complied with her obligations.

32    There is, in my opinion, a firm basis for suspicion that this is so. The plaintiff has identified only six categories of documents as documents in her possession, custody or power for which no privilege is claimed. These include a copy of the matter complained of, transcripts of the Stewards’ inquiry and appeal proceeding, her racehorse trainer’s licence for the period September - October 1996, correspondence between the parties and their legal representatives, and court documents and copies thereof. A further five categories of documents are itemised under the same head, but in relation to which privilege is claimed.

33    The plaintiff initially listed two categories of documents as being those which previously had been, but were not at the date of swearing her affidavit, in her possession, custody or power. These were the originals of those letters which were written by her or her solicitors (and which obviously have been dispatched) and the originals of such court documents as emanated from her solicitor.

34    On 8 June 2000, apparently in answer to a complaint of inadequate discovery by the defendant’s solicitors, the plaintiff filed a “Further Supplementary List of Documents”. The list of items in the last category was expanded to include exhibits produced in the Stewards’ inquiry and in the appeal proceedings (both of which were said to have been retained by those who conducted those proceedings), and a “race map” for the Shannon Quality Handicap, which was said to have been discarded in the ordinary course of events after the date of the race.

35    In a letter written on 6 June 2000 to the defendant’s solicitors, the plaintiff’s solicitors said that they had ascertained from the plaintiff’s former solicitor, who represented her during those proceedings, that he did not receive a copy of the transcript of the appeal proceedings, that the exhibits were retained and not returned to the plaintiff, and that the plaintiff did not keep records of starts and performances of horses she trained and did not make documents relating to the training of Gossips or other race horses under her care.

36    Counsel for the defendant suggested that, as a matter of common sense and common knowledge, it should be inferred that even this supplementary list is deficient. He suggested that it is extremely unlikely that the plaintiff’s present and past possession of relevant documents is as limited as the affidavit states. By way of example, he pointed out that the plaintiff was represented by solicitors and senior counsel during the course of the Stewards’ inquiry and the appeal and argued that ordinary knowledge of the conduct of such proceedings would suggest that copies of exhibits would have been made for the use of the plaintiff and her legal representatives. Nothing to this effect has been identified in the affidavit of discovery, including in the list of documents said to have passed from the plaintiff’s possession.

37    I think there is a great deal of force in this argument, but the clear limitations on exploring the adequacy of an affidavit of discovery make it difficult to make any firm findings of fact in this respect. I do not propose finally to determine this matter at this stage; I shall content myself, for the moment, with drawing the attention of the plaintiff, and perhaps more importantly, her solicitors, to the obligations in relation to discovery which pertain, not only to parties, but also to their solicitors. In this respect the plaintiff’s solicitors should have close regard to the notes contained in Ritchie at paragraph 23.3.12.

The Holding List

38    The final application made by the defendant is to have the matter removed from the Holding List. In support of this application some reliance was placed upon the inadequacy of the plaintiff’s responses to interrogatories and the asserted inadequacy of her discovery affidavit. More significantly, however, the defendant’s solicitor deposed that since his appearance in the Defamation List on the date on which the matter was placed by consent in the Holding List, he had had an opportunity to obtain advice from senior counsel and that at “the direction” of senior counsel that he was undertaking and having caused to be undertaken a number of factual investigations involving, inter alia, the issue of subpoenas. The solicitor anticipated that these investigations will take approximately two months to complete. He therefore expressed the view that the matter was not ready to be set down for hearing.

39    This is a quite unsatisfactory basis on which to seek to have a matter removed from the Holding List. It is well known that the Defamation List was created for the purpose of ensuring expeditious resolution of defamation claims. Parties to defamation proceedings are provided with a level of service from the court available to few other litigants. In this respect they are accorded a significant privilege. It is incumbent upon them to respond to that privilege by diligent preparation. Further, a party to any proceedings, whether in defamation or otherwise, who accedes to the placement of a matter in the Holding List, is, by that acquiescence, expressly or implicitly signifying that the matter is ready for allocation of a hearing date. That course should not be taken if advice, intended to be taken, has not been obtained from senior counsel, or if other steps considered necessary for presentation of the case have not been taken. Factual investigations should be completed before a matter is placed in the Holding List. If this is not done, the omission is at the party’s risk. The privileges accorded by the court to litigants in the Defamation List (at the expense of other litigants) do not permit of dilatory preparation. The special arrangements made for defamation litigants come at a cost; the cost is the expectation (which will be enforced) that parties will be ready to proceed when they say they are.

40    Provided the plaintiff complies with the order I now make, I will not remove the matter from the Holding List. If, however, the plaintiff fails to comply with that order, the defendant will be entitled to make a further application.

41    In accordance with these reasons, I order the plaintiff to answer interrogatories 14, 21-26 inclusive, and 30-32 inclusive. The answers are to be provided by 16 July. Costs reserved.

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Last Modified: 09/26/2000