McKay v Fairfax Media Publications Pty Ltd; McKay v The Australian Broadcasting Corporation

HER HONOUR: These are proceedings for defamation which are before the Court today for the second listing (as contemplated by the Defamation List Practice Note SC CL 4, cl 16). The parties are in agreement as to the appropriate further interlocutory steps in the proceedings, save for a dispute as to “Assaf v Skalkos” interrogatories.

In Assaf v Skalkos (Supreme Court (NSW), Hunt CJ at CL, 9 August 1995, unrep), Hunt CJ at CL rejected interrogatories in the form proposed by the defendant in that case. In giving that ruling, however, his Honour provided what would be permissible, saying:

The interrogatories sought by the defendants in the present case arguably venture beyond the terms of those approved by his Honour. The interrogatories sought in the Fairfax proceedings are in the following terms:

Ms Barnett, who appears for the defendants in both proceedings, submitted that interrogatories of that kind should be allowed in the present case, for a number of reasons. First, it was noted that the plaintiff has brought proceedings against several different media entities in respect of broadly the same imputations. On that basis, Ms Barnett submitted that the interrogatories will assist the parties to understand the respective different damage to reputation occasioned by each different publication and that that information, in turn, will assist the parties in advance of the hearing in allocating responsibility for any damage to the plaintiff's reputation and so advance settlement discussions.

Secondly, Ms Barnett noted that the defendants have consented to give discovery about reader reaction and have also undertaken to answer interrogatories about the scope of publication. She submitted that the interrogatories sought to be administered to the plaintiff now will “complete the picture” in that respect.

A separate point made by Ms Barnett in reply was that the plaintiff will have to give evidence about the matters addressed in the interrogatories in any event and so should not suffer any disadvantage from having to prepare such evidence in advance in writing for the purpose of answering the interrogatories, but will rather benefit from undertaking that preparation sooner rather than later.

Mr Richardson, who appears for the plaintiff, opposed the plaintiff’s being required to answer the interrogatories on a number of grounds. First, he reminded me of my judgment in Bateman v Fairfax Media Publications Pty Ltd (No 6) [2015] NSWSC 890 at [21] to [24]. Since the issue of the form of interrogatories likely to be allowed in this practice list is likely to be of guidance to other parties, it is convenient to repeat the relevant passage in full:

Secondly, Mr Richardson drew my attention to the decision of the Victorian Court of Appeal in Herald and Weekly Times Ltd v Hawke; Herald and Weekly Times Ltd v Kornhauser [1984] VR 587. In that case, the Court comprised of Crockett, Murphy and Marks JJ was considering interrogatories in the following form:

Their Honours said:

Interestingly, Hunt CJ at CL referred to that judgment in Assaf v Skalkos in terms from which it is not entirely clear to me whether his Honour agreed or disagreed with those remarks. The relevant passage is set out above. It may be that his Honour intended to express his respectful disagreement with the conclusion of the decision in Hawke. Alternatively, it may be that his Honour saw some distinction between the interrogatories his Honour was allowing and those disapproved in Hawke. I must say the distinction, with respect, eludes me.

In any event, both decisions were made some considerable time ago. I must determine the present question in the context of the requirements of pt 6 of the Civil Procedure Act 2005 (NSW) and the Defamation List Practice Note, which evinces a clear intention to remind parties, particularly in defamation proceedings, of their obligation to assist the court to seek to further the overriding purpose of the Act of resolving the issues in the proceedings in a manner that is just, quick and cheap.

Defamation proceedings notoriously are at risk of disproportion between legal costs and the interest at stake. Mr Richardson submitted in that context that the notion that interrogatories of the kind presently propounded would in fact provide any practical assistance to the court to differentiate between the respective liability of the various different publishers of the same imputations may be dismissed as fanciful. Those were not Mr Richardson's precise words but that is what I understood to be the effect of the submission.

In my view, there is force in that submission. Having presided over a number of trials and had the task of assessing damages, I consider it unlikely that answers to the interrogatories propounded in the present case will usefully inform the assessment of damages or even the differentiation between responsibility of different defendants in any real or practical way. I am not persuaded that the interrogatories are "necessary" within the meaning of the rules or the practice note. The defendant's application for leave to administer those interrogatories is refused.