Mooney v Nationwide News Pty Limited (No 2)

HER HONOUR: These are proceedings for defamation arising out of the publication of two articles in The Sunday Telegraph and The Daily Telegraph. The nature of the articles, and the defamatory meanings specified by the plaintiff, are dealt with in an earlier judgment in the proceedings: Mooney v Nationwide News Pty Ltd [2014] NSWSC 938.

Since the commencement of the proceedings, the Chief Justice has published Practice Note SC CL 4 governing proceedings in the defamation list. The present application relates to the further interlocutory steps sought by the plaintiff in accordance with that Practice Note.

As this is the first substantive contest to come before the Court since the issue of the Practice Note, it is appropriate to state the principles that will be applied in the list for the guidance of practitioners.

Clauses 16 to 18 of the Practice Note state:

The plaintiff moves the Court for disclosure of documents and answers to interrogatories attached to a Notice of Motion filed 10 October 2014. However, at the time the application was argued, it was indicated by Mr Richardson, who appears for the plaintiff, that if the Court were minded to order that the defendant answer certain interrogatories, the outstanding requests for disclosure would not be pressed. Accordingly, it is appropriate first to turn to the question whether the Court should order the defendant to answer the proposed interrogatories.

By way of introductory comment, it may be noted that, by its defence filed 9 September 2014, the defendant has raised defences of justification, honest opinion statutory qualified privilege and common law qualified privilege. Further, the plaintiff has filed a reply alleging various matters of defeasance. It follows that issues relating to the defendant's state of mind at various points plainly arise.

The defendant has indicated that it refuses to answer any of the interrogatories proposed on behalf of the plaintiff. Having regard to the introduction of the new Practice Note and the desirability of giving guidance to practitioners, it is appropriate to set out the contested interrogatories in full (these were numbered 2 to 11 in the plaintiff’s document):

In support of the application for an order that those interrogatories be answered, Mr Richardson provided helpful written submissions. I have drawn heavily from those submissions in what follows. Mr Richardson noted that r 22.1 of the Uniform Civil Procedure Rules 2005 (NSW) has always posed, for an order that any party answer specified interrogatories, the test of necessity. That is the test adopted in the Practice Note. He submitted that the Practice Note, whilst certainly requiring closer supervision of the content of interrogatories by the Defamation List Judge, does not alter that long-standing test.

It may also be noted that, in addition to requiring closer supervision by the Court, the Practice Note is plainly intended to focus the attention of the parties on that issue, specifically directing their attention to questions of necessity and proportionality. Those are different concepts raising different considerations and always requiring attention to the individual circumstances of the case in which the application is made.

Against those observations, Mr Richardson noted that a plaintiff's right to interrogate a defendant as to the information the defendant had in its possession in relation to matter complained of at the time of its publication (the information interrogatory set out above) where qualified privilege is pleaded enjoys long-standing support in authority. He referred, by way of a convenient starting point, to the decision of Hunt J, when his Honour was the defamation list judge, in Palmer v John Fairfax & Ltd (1986) 5 NSWLR 727. His Honour explained, at 729, that the plaintiff is entitled to obtain such information:

That statement of principle, as noted by Mr Richardson, has received endorsement by a number of judges since that date, including Nicholas J (when his Honour was the Defamation List judge) in Clout v Jones [2011] NSWSC 1430 at [11]-[13]. Mr Richardson submitted that his Honour there upheld a "more punitive” version of the information interrogatory than here proposed, being directed to each imputation rather than the whole matter: and see Kermode v Fairfax Media Publications Pty Ltd (No 2) [2011] NSWSC 646 at [12]-[25].

Mr Richard also referred in his written submissions to a series of authorities dealing with the other interrogatories proposed by the plaintiff in the present case, as follows:

Mr Richardson noted that he had not been able to locate any authority dealing specifically with the alteration of the matter complained of prior to publication. I will return to that issue.

On behalf of the defendants, it was argued that, having regard to the introduction of the new Practice Note, such interrogatories should not now be allowed. The defendants observed, no doubt correctly, that the matters the subject of report in the present proceedings have been the subject of a very large number of articles, many prepared by the same journalists as are involved in these proceedings at different times; some probably contributed to by other journalists not involved in the matters complained of in these proceedings.

In that context, a concern was raised as to the breadth of the task that would be involved in answering the interrogatories. In correspondence, the defendants stated to the plaintiff, "In our experience, significant cost is usually incurred answering interrogatories of this type, and they are rarely tendered in evidence against the defendant."

Mr Richardson noted in response to that observation that, even if it is correct, it does not follow that the interrogatories are not "necessary" within the meaning of the rule. He submitted that interrogatories not infrequently expose weaknesses in a defence. That observation, in my view, has particular force in the case of the defence of qualified privilege at common law which, for reasons which are difficult to discern, is very frequently pleaded by media defendants and subsequently abandoned. A function of the Practice Note, it is to be hoped, will be to require defendants to turn their attention to such weaknesses at an early point in the proceedings, a potential saving of cost and delay.

Mr Richardson further observed that such interrogatories serve the function of a tool for cross examining a journalist. Ms Barnett, who appeared for the defendants, submitted in substance that the onus of proving reasonableness of the conduct of the journalist lies on the defendants and on that basis that the plaintiff could have no need for that material before trial, having the opportunity at trial to test the proposition according to the material presented. That, I think, would impose an unfairness on a plaintiff coming to trial without the opportunity to prepare for such cross examination by reference to the interrogatories provided.

Finally, Mr Richardson observed that often the journalist is not called as a witness, in which event there is no need for the answers to interrogatories to be tendered. He suggested that may explain why such answers are not tendered with the frequency with which they are required to be answered. He drew my attention to the careful and lucid remarks of Simpson J in Cotter v John Fairfax Publications Pty Ltd [2001] NSWSC 587 as follows:

Mr Richardson noted that, for example, the revelation that a defendant did not intend to convey an imputation, practically speaking, "tends to wreck a defence of statutory qualified privilege or comment beyond repair." He submitted, with some force, that there is no basis and, particularly, no warrant in the provisions of the Civil Procedure Act 2005 (NSW) for allowing a defendant to keep that information (the fact that a journalist did not intend to convey an imputation) to itself until trial.

I have reached the conclusion that the interrogatories proposed in the present case meet the test of necessity in the rules and, further, that it is appropriate to order that they be answered. I have been persuaded by Mr Richardson's submissions that they are necessary for the resolution of the real issues in dispute in the proceedings.

Leaving aside the alteration interrogatories, each of the interrogatories finds support in the authorities to which Mr Richardson referred. I have given consideration to whether it would be sensible to dispense with the traditional alteration interrogatories which, as already acknowledged, Mr Richardson did not support with any old authority. Upon reflection, I consider it is a necessary interrogatory in the present case because the state of mind of the defendants will be such an important issue in the trial.

Against necessity, the Court must always consider the issue of proportionality, and these interrogatories may not always meet the test, having regard to that competing consideration. In concluding that the interrogatories are necessary in the present case, I would observe that Mr Richardson and those instructing him have taken care to distil the interrogatories in the present case to a practical, sensible minimum.

In that context, two further things may be noted.

First, Mr Richardson accepted that, if the defendant says it did intend to convey the imputations, the consideration interrogatory was not required to be answered. It might be helpful if the order of those two interrogatories were reversed with additional words to reflect that concession.

Secondly, Mr Richardson noted that it is common to answer the information interrogatory in a way that at the same time answers the enquiries and other steps interrogatories.

I have given consideration to whether those three interrogatories could more conveniently be consolidated into one to reflect that practice, but upon reflection I think that would result in a single question which would be too cumbersome. Nonetheless, the concession made by Mr Richardson emphasises the fact that these interrogatories are relatively narrow in their scope.

I direct the plaintiff to serve Interrogatories 2 to 10 and 13 to 21 in accordance with these reasons and the concessions agreed between the parties.

I order the defendant to pay the plaintiff's costs of the application heard last Friday.

I list the matter for hearing on 13 July 2015 for two weeks.

I stand the matter over for directions on 14 November 2014.