Prowse v Harbour Radio Pty Ltd

HER HONOUR: These proceedings are listed today for the second listing in accordance with practice note SC CL 4. There is between the parties a single dispute as to the interrogatories proposed by the plaintiff for answer by the defendants. The context in which the disputed interrogatories are proposed is that the defendants have pleaded a defence of honest opinion and a reply has been put on to that defence. In those circumstances the plaintiff wishes to interrogate the defendants in the following terms (interrogatory 8):

The disputed interrogatories are (ii) and (iv). Specifically, Mr Ricardson, who appears for the defendants, submitted that a defendant cannot be compelled to say why he or she held any relevant opinion.

Mr Rasmussen, who appears for the plaintiff, sought to defend those interrogatories by reference to my decision in Kermode v Fairfax Media Publications Pty Ltd (No 2) [2011] NSWSC 646. That was a case in which, as here, there was a defence of honest opinion to which the matters of defeasance identified in the statute had been pleaded by way of reply. I noted at [9] of the judgment that, by his reply, the plaintiff had assumed the burden of proving, as to each defendant, that the matter complained of was an expression of his own opinion, that the opinion was not honestly held by that defendant at the time the matter complained of was published and, as to each of the corporate defendants, that the matter complained of was an expression of opinion of Mr Linton Besser and that the corporate defendant did not believe that the opinion was honestly held by Mr Besser at the time the matter complained of was published.

In that context, I acceded to the plaintiff’s submission that the interrogatories there in dispute were necessary for the resolution of the real issues in the proceedings. The interrogatories considered by me in that case were what are sometimes described as information interrogatories. I accepted, as submitted by Mr Smark on behalf of the plaintiff, that the interrogatories were necessary to enable the plaintiff to test the question whether each defendant held the relevant belief as required under section 31(4) of the Act.

The interrogatories now proposed go somewhat further than the interrogatories I approved in Kermode, directing attention not to the information held by the relevant author of the opinion but requiring each defendant to go further and explain why that defendant held such opinions.

An interrogatory in the terms now pressed was considered in the judgment of Hunt J in Lewis v Page, Supreme Court of New South Wales, 14 July 1989 (unreported). His Honour addressed interrogatories similar to those posed here, as follows:

It may be noted that interrogatory 8(i) in the present case ignores his Honour’s view set out in the first three paragraphs of that extract but the defendants did not object to that interrogatory.

Mr Rasmussen submitted that Hunt J was wrong, in the last paragraph of the extract, to draw a distinction between reasonableness and honesty. I do not agree.

In my view the remarks of Hunt J in Lewis v Page are of equal application to the present interrogatory. Further, his Honour was, of course, considering the question of interrogatories before the publication of the practice note SC CL 4. Mr Richardson has successfully and correctly submitted in other cases in this list that the practice note does not alter the test of necessity stated in the rules, but it does focus the attention of the Court on the need for particular interrogatories to investigate issues raised on the pleadings in the context of the important principle of proportionality. I am not persuaded that the interrogatories now proposed satisfy that test. Accordingly I decline to order the defendants to answer interrogatories 8 (ii) and (iv).

I order the plaintiff to pay the defendants’ costs of the application.