Wood v Nationwide News Pty Limited (No 2)

[2014] NSWSC 1944

Supreme Court

New South Wales

Medium Neutral Citation:	Wood v Nationwide News Pty Limited (No 2) [2014] NSWSC 1944
Hearing dates:	14 November 2014
Date of orders:	14 November 2014
Decision date:	14 November 2014
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	The plaintiff is ordered to answer the interrogatories attached to Ms Mehta’s affidavit.
Catchwords:	DEFAMATION – interlocutory steps – defendant seeking order that plaintiff answer interrogatories – whether necessary – where defendant seeking to prove truth of imputation that plaintiff murdered a person – where plaintiff had never previously given a sworn account as to his movements on the night of that person’s death
Cases Cited:	Wood v Nationwide News Pty Limited [2014] NSWSC 1527 Wood v R [2012] NSWCCA 21 Cotter v John Fairfax Publications Pty Limited [2001] NSWSC 587 Bryson v Casey [2002] NSWSC 636
Category:	Procedural and other rulings
Parties:	Gordon Wood (Plaintiff) Nationwide News Pty Limited (First Defendant) News Digital Media Pty Ltd (Second Defendant) Janet Fife-Yeomans (Third Defendant)
Representation:	Counsel: S Chrysanthou (Plaintiff) M Richardson (Defendants) Solicitors: Kalantzis Lawyers (Plaintiff) Ashurst Lawyers (Defendants)
File Number(s):	2013/133167
Publication restriction:	None

Judgment

1. HER HONOUR: This is an application by the defendants for an order requiring the plaintiff to answer interrogatories.

2. The background to these proceedings is recorded in my earlier judgment in which I have ordered that the proceedings be heard by a jury of 12: see Wood v Nationwide News Pty Limited [2014] NSWSC 1527. It is worth repeating, as there recorded, that the action is one in defamation in which Mr Gordon Wood sues on a number of imputations, including an imputation that he murdered his girlfriend, Caroline Byrne. The defendants have pleaded the defence of truth to that imputation. Accordingly, the trial will involve the determination to the civil standard of proof of the issue whether Mr Wood did in fact murder his girlfriend.

3. Mr Wood was tried for that offence and convicted by a jury, but the Court of Criminal Appeal set the verdict aside and quashed the conviction, entering a verdict of acquittal: see Wood v R [2012] NSWCCA 21. The parties have informed me this morning that Mr Wood did not give evidence in the criminal proceedings.

4. The application is made in accordance with clauses 16 and 17 of Practice Note SC CL 4. The test posed by the Practice Note is that the Court will not order any party to answer interrogatories except where, after considering the draft proposed interrogatories, the Defamation List Judge forms the view that they are necessary for the resolution of the real issues in dispute in the proceedings. That formulation in the Practice Note was not intended to supplant the test stated in r 22.1 of the Uniform Civil Procedure Rules 2005 (NSW), which states that an order that a party answer specified interrogatories is not to be made unless the Court is satisfied that the order is necessary at the time it is made. Rather, the object of the Practice Note was to focus the attention of the parties, by the sanction of having their interrogatories first considered by the Defamation List Judge, on narrowing the scope of interlocutory processes in an appropriate way.

5. The proposed interrogatories are annexed to the affidavit of Tanvi Mehta, affirmed 13 November 2014. I accept, as contended by Mr Richardson on behalf of the defendants, that they are modest in their scope, reflecting a genuine attempt to engage with the objects of the practice note.

6. The plaintiff objects to an order answering the interrogatories. Ms Chrysanthou, who appears for the plaintiff, accepted that they are relevant, but submitted that they do not meet the test of necessity in r 22.1. She further submitted that the interrogatories are oppressive so as to found an objection under r 22.2(b). As to whether the interrogatories are necessary, Ms Chrysanthou submitted that they are not needed by the defendants, since the particulars of the truth defence reveal that the defendants are in possession of a large number of witness statements containing many versions of events given by the plaintiff as to his movements on the night on which Caroline Byrne died.

7. However, as noted by Mr Richardson, the test of necessity is not whether a party will be deprived of the opportunity to prove a case if the interrogatories are refused. Mr Richardson reminded me of the helpful consideration of that test by Simpson J in two decisions of her Honour, Cotter v John Fairfax Publications Pty Limited [2001] NSWSC 587 and Bryson v Casey [2002] NSWSC 636.

8. In Bryson, Simpson J said at [19]:

Perhaps the most important purpose of the interrogation process is to facilitate proof of the interrogating party’s case. Skilfully administered interrogatories may achieve proof of matters which may otherwise take a number of witnesses and a great deal of time to prove. This is done simply by securing the admission by the interrogated party of the particular fact or facts. It is, of course, essential that the interrogatories relate to a matter in question, but this relationship may, on occasions, be indirect.

9. It seems to me, having considered the terms of the interrogatories propounded by Mr Richardson, that they are, if I may respectfully say so, skilfully administered and likely to achieve proof of matters which may otherwise take a number of witnesses and a great deal of time for the defendants to prove in the present case. The conduct of the truth defence in effect will involve re-running the Crown case in the criminal trial, albeit on the defendants' onus and to the civil standard of proof.

10. As submitted by Mr Richardson, the particulars reveal that the defendants do not have any sworn account of the plaintiff's version of events. The absence of a sworn version is significant. What the defendants have are statements made to police and journalists by the plaintiff and, it appears, statements of witnesses to whom the plaintiff is alleged to have made various statements at various times, but the potential procedural advantage of a sworn version of events by the plaintiff in these proceedings cannot be doubted.

11. I accept, as submitted by Mr Richardson, that the interrogatories cannot be described as only going to the plaintiff's credit. Further, I accept that, as I have already noted, they appear to be drawn in relatively modest terms and appear mostly to be tied with some specificity to the particulars of truth.

12. In all the circumstances, I am of the view that the proposed interrogatories are necessary for the resolution of the real issues in dispute in the proceedings. The plaintiff is ordered to answer the interrogatories attached to Ms Mehta's affidavit.

**********

Decision last updated: 12 March 2015