Camden v Pujolas & Ors [2000] QDC 15

DISTRICT COURT OF QUEENSLAND CITATION: Camden v. Pujolas & Others [2000] QDC 015 PARTIES: PERCY CAMDEN (plaintiff) v. F.B. PUJOLAS (first defendant) & ANTHONY SLEVEN (second defendant) & THE CONSTRUCTION, FORESTRY, MINING & ENERGY UNION (third defendant) FILE NO/S: Plaint 5079 of 1998 DIVISION: PROCEEDING: Application in a proceeding ORIGINATING COURT: District Court Brisbane DELIVERED ON: 18 February 2000 DELIVERED AT: Brisbane HEARING DATE: 19 August 1999 JUDGE: McGill DCJ ORDER: Order that the first, second and third defendants file and serve further and better answers to interrogatories numbered 2, 3, 4, 6, 17, 18 and 19(a) delivered on 17 March 1999 for their examination, within 21 days from the date of this order. Order that the defendants pay the plaintiff’s costs of court incidental to the plaintiff’s application to be assessed. Defendants’application dismissed with costs to be assessed Leave to the plaintiff to have the costs assessed forthwith CATCHWORDS: DEFAMATION – interrogatories – directed to defendant pleading fair comment and qualified privilege – relevant to state of mind and state of knowledge of defendant – whether test of fairness objective only – Defamation Act 1889 ss 14, 16. Uniform Civil Procedure Rules rr 234, 236 Goding v. Queensland Newspapers Pty Ltd (1965) 113 CLR 170 – considered Pervan v. North Queensland Newspaper Co Ltd (1993) 178 CLR 309 – considered Kerrisk v. The North Queensland Newspaper Co Ltd [1992] 2 -- 1 of 16 -- 2 Qd.R. 398 - - followed Goding v. Queensland Newspapers Pty Ltd [1966] Qd.R. 545 – followed Elliott v. Garrett [1902] 1 KB 870 – followed Plymouth Mutual Co-Operative and Industrial Society Limited v. Traders Publishing Association Limited [1906] 1 KB 403 – followed Cauley v. Australian Consolidated Press Limited [1981] 1 NSWLR 225 – followed Palmer v. John Fairfax & Sons Ltd (1986) 5 NSWLR 727 – followed Makim v. John Fairfax & Sons Ltd (NSW Supreme Court, 15.6.90 unreported) – followed Howard v. Nationwide Publishing Service (NSW Supreme Court, 26.2.87, unreported) – not followed Taringa 24 Hour Medical Centre Pty Ltd v. Brisbane TV Ltd (Queensland Supreme Court, 22.5.98, unreported) – followed COUNSEL: P.D.T. Applegarth for the plaintiff M.P. Amerena for the defendants SOLICITORS: Hopgood & Ganim for the plaintiff Nall Payne for the defendants [1] This is an application for further and better answers to interrogatories. The plaintiff delivered interrogatories for the examination of each of the three defendants on 17 March 1999. Answers by the first defendant were not provided until 3 June 1999, and the answers by the second and third defendants were outstanding at the date of filing of the application, on 14 July 1999. That application sought an order that the second and third defendants respond to those interrogatories and sought further and better answers by the first defendant to interrogatories 2, 3, 4, 6, 17, 18 and 19(a). [2] Since the application was filed and served the second and third defendants have filed answers which are similar to the answers filed on behalf of the first defendant in that they are, from the plaintiff’s point of view, no more responsive than those of the first defendant to which further and better answers were sought in the application. Accordingly, the plaintiff sought and was allowed on the hearing of the application to amend the application to seek an order that each of the defendants provide further and better answers to those interrogatories. The day before the hearing the defendants indicated that they were prepared to provide further and better answers to interrogatories 6, 17, 18 and 19(a). That left interrogatories 2, 3 and 4 in dispute. It was argued on behalf of the defendants that these interrogatories were objectionable; in the alternative relief was sought by the defendants from the obligation to answer them. The Action [3] This action was commenced by the issue out of the Supreme Court at Brisbane on 27 June 1997 of a writ claiming damages for defamation. At that stage there were -- 2 of 16 -- 3 four plaintiffs, but a Notice of Discontinuance of the actions on behalf of the second, third and fourth plaintiffs was filed on 28 November 1997. The action has seen a deal of interlocutory activity already, including an order on 30 September 1998 by Ambrose J for amended pleadings to be filed, for mediation, and if the matter was not resolved by mediation (as it was not) for the action to be transferred to the District Court at Brisbane; one of the directions which His Honour gave was that any interrogatories must be answered within 14 days. A mediator’s certificate that the dispute had not been resolved was filed on 2 November 1998. The current version of the pleadings is a second further amended Statement of Claim delivered 30 September 1998, a second further amended defence delivered 25 May 1999, and a reply delivered 8 October 1998. [4] The plaintiff was employed by a mining company with which the third defendant was in dispute in April 1997 when a circular was distributed to members of the public by the first and second defendants and other members of the third defendant in Brisbane outside the offices of the parent company of the employer. It is alleged that the circular contained statements defamatory of the plaintiff in various respects, and a number of imputations are pleaded. It is also alleged that the first and second defendants carried posters or placards printed for the third defendant which caused them to be displayed, and which were defamatory of the plaintiff. It is further alleged in support of a claim for aggravated exemplary damages that the defendants published the circular and displayed the posters knowing that the imputations which they conveyed concerning the plaintiff were false or did so with reckless indifference as to their truth or falsity, and that the defendants acted in calculated disregard for the damage which the publications would do to the plaintiff. [5] In the second further amended defence it is admitted that the first and second defendants and members of the third defendant handed out the circular on 16 April 1997 in the terms alleged. The defendants deny that posters in the terms alleged were displayed, although they admit that certain posters were displayed, and deny that the circular or the posters they admit were displayed were defamatory and deny that they carried the imputations alleged. The pleading goes on to allege that the circular contained certain express statements of fact, and further facts impliedly stated by reference to the subject matter of the circular or otherwise generally known, which supported a number of comments identified as contained in the circular, which are alleged to be comments made with respect to communications to the public by the plaintiff or by others occasioned by the conduct of the plaintiff which invited public scrutiny, comment and criticism, and hence lawful as fair comment, (a defence under s.14(1)(h) of the Defamation Act 1889 and that a severable part of the publication was true in substance and in fact and its publication was for the public benefit: s.15. [6] It is further alleged that the publication was made for the purpose of seeking remedy or redress of a public or private wrong or grievance from the directors of the parent company who had or reasonably believed to have had authority over the plaintiff with respect to the subject matter of the wrong or grievance (s.161(1)(b)) the publication was for the protection of the interests of the defendants and other members of the third defendant employed at the mine and was for the public good (s.16(1)(c)) it was made for the purpose of giving information to people to whom it was made with respect to the subject that the defendants had or believed on reasonable grounds to have interest in knowing the truth so as to make their conduct -- 3 of 16 -- 4 reasonable in the circumstances (s.16(1)(e)), and it was made in the course of or for the purpose of the discussion of a subject of public interest, public discussion of which was for the public benefit and insofar as the matter consisted of comment the comment was fair: s.16(1)(h). [7] It is further alleged by way of mitigation of damages that if any of the defendants have unlawfully published any defamatory imputations, they honestly but mistakenly believed in the truth of the statements of fact unlawfully published, or any facts on which any comment unlawfully published was based, and any comment made by them was honestly made: para. 13I. In the reply an absence of good faith is alleged in relation to the defence of fair comment, and that at the time the defendants did not have the opinions represented by the comments. The Interrogatories In Dispute [8] Interrogatories 2, 3 and 4 are in the following terms: 2. Prior to causing the circular to be distributed to members of the public: (a) did you take any, and if so what, steps to verify the truth of the statements contained the circular and which of them, and did you make any, and if so what, inquiries with a view to ascertaining whether such statements or any of them were true or not? (b) Of whom and when and how were such inquiries made? (c) Identify all documents read in the course of such inquiries and the dates of, parties to, and substance of all interviews. (d) Did you receive any and, if so, what answer or answers and from whom to any and which of the inquiries mentioned in answer to Interrogatory (a) herein? (e) State the date or dates upon which such answer or answers were received. (f) Did you make any, and if so what, attempt to contact the plaintiff to verify the accuracy of the statements contained in the circular concerning the plaintiff? (g) Did you seek the plaintiff’s response to any assertions made in the circular concerning the plaintiff, particularly assertions relating to management of the Metropolitan underground coal mine and the circumstances under which the plaintiff ceased to be employed at that time? If not, why did you not seek the plaintiff’s response? (h) Did you have any, and if so what, information: (i) In relation to the management of the Metropolitan underground mine (ii) In relation to the circumstances under which the plaintiff ceased to be employed at that mine; (iii) Which induced you to believe that the plaintiff “abandoned ship just weeks before the Metropolitan mine was declared bankrupt? 3. Prior to causing the circular to be distributed to members of the public, did you have any, and if so what, knowledge or belief in relation to each of the following matters, namely that the plaintiff, together with Nicholls, Menzies and Payne: -- 4 of 16 -- 5 (i) caused the Metropolitan underground coal mine in New South Wales to be declared bankrupt; (j) had mismanaged the operation of the Metropolitan underground coal mine in New South Wales; (k) were incompetent to manage the Okay Creek mine; (l) would cause the self-destruction of the Okay Creek mind; (m) abandoned the Metropolitan coal mind knowing that it was about to be placed into administration, so as to receive the full benefits of payments owed in priority to other employees; (n) received their “pay outs” illegally and/or immorally before the employees; (o) would cause the destruction and closing of the Okay Creek coal mine due to their mismanagement; (p) had no plan for the future of the mine; (q) would mismanage the Okay Creek coal mine site in Queensland as they mismanaged the Metropolitan coal mine in New South Wales; (r) had misconducted themselves in a manner such that employees should fear for their future employment with the company at Okay Creek; (s) did not deserve the trust or confidence of MIM or its shareholders.” 4. In distributing the circular to members of the public, did you intend: (a) to convey any and if so what information concerning the plaintiff? (b) to convey any and if so which of the imputations pleaded in paragraph 10 of the Statement of Claim? (c) to convey any and if so what imputations concerning the plaintiff? (d) if the answer to Interrogatory (b) or (c) herein is in the affirmative, did you believe the imputation to be true? (e) if the answer to Interrogatory (b) herein is in the negative, did you give any consideration to the possibility that the circular could be understood as conveying any, and if so which, of the imputations pleaded in paragraph 10 of the Statement of Claim? (f) if so, did you take any and if so what steps to prevent the circular from being so understood? [9] It was submitted on behalf of the plaintiff that the state of mind of the defendant at the time of publication was relevant so that the defendant may be interrogated as to information in his possession at the time of publication and what information he had that induced him to believe that the words complained of were true, what inquiries he made in order to ascertain the truth of the matter and what information the defendant had so as to be able to assess the reasonableness of their conduct in the circumstances. It was submitted that an interrogatory in this form was approved by the High Court in Goding v. Queensland Newspapers Pty Ltd (1965) 113 CLR 170 at 174. [10] The defendants characterised the interrogatories in question as “Elliott v. Garrett” interrogatories, that is interrogatories which are directed to ascertaining the state of knowledge of the defendant at the time of publication and determining how such knowledge was acquired. In Elliott v. Garrett [1902] 1 KB 870, there was a defence in an action for slander that the words were spoken in good faith without malice -- 5 of 16 -- 6 towards the plaintiff and in discharge of the defendant’s duty as a member of a borough council, so that the occasion was privileged. Such a defendant would today in this state plead a defence under one or other of the paragraphs in s.16(1) of the Defamation Act 1889. The interrogatory in question was “what information, if any, had you that induced you to believe that the words were true, or what steps, if any, had you taken before speaking the words to ascertain whether they were true or not?” The purpose of the interrogatory was said to be to enable the plaintiff to prove the statement was malicious and thus answer the plea of qualified privilege. The interrogatory was said not to be fishing because the plaintiff’s case was as pleaded and all he was seeking to get in support of his case was evidence which lay only within the knowledge of the defendant. [11] In the present case a defence is pleaded under s.16(1)(b), (c), (e), and (h) of the Act, all of which will be defeated if the publication was not made in good faith. That is a matter in respect of which the onus lies on the plaintiff: s.17. In order to discharge that, it is necessary for the plaintiff to negative one of the components of good faith as set out in s.16(2), that is to say, to prove that the matter published was not relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter, that the manner and extent of the publication exceeded what was reasonably sufficient for the occasion, that the person by whom it was made was actuated by ill-will to the plaintiff or by any other improper motive, or that the defendant believed the defamatory matter to be untrue: Pervan v. North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 330. Some of these do not suggest any inquiry into the state of mind of the defendant, but the question of whether the defendant was actuated by ill-will or any other improper motive, and whether the defendant believed the defamatory matter to be untrue, would make relevant the state of mind of the defendant at the time of publication, the defendant’s actual attitude to the truth of what was stated, and what justification the defendant had at that time for any belief as to the truth or otherwise of those statements. [12] It is obviously going to be difficult for a plaintiff to be able to lead evidence which is relevant to those issues except with the benefit of something which has come one way or another from the defendant, and if the plaintiff does not have the benefit of admissions prior to the action the only opportunity the plaintiff will have to secure such evidence prior to closing his case would be by way of interrogatories. (I suppose one possible alternative would be a Notice to Admit Facts, but I think it may safely be assumed that that would be unlikely to be of assistance in a situation such as this.) [13] The decision in Elliott v. Garrett was followed by the Court of Appeal in White & Co v. Credit Reform Association [1905] 1 KB 653. Collins MR repeated the justification given in the earlier case, but added (p.658) that: “It is essential to know all the facts; and it is obvious that, if the information upon which he acted was procured from a person or persons who could not possibly know anything about the matters in question, and he nevertheless published the statement complained of as if they were based on sufficient information, that might be cogent evidence of malice. To sever the question from whom such -- 6 of 16 -- 7 information was obtained from the question whether any and what information was obtained appears to me quite illogical.” That took the earlier decision further by requiring the defendant to state the sources of such information as he had at the relevant time. This obligation in such circumstances to disclose sources came in time to be modified by what is known as the “newspaper rule”, but that has a fairly limited application. Whatever its scope it does not apply in a case such as the present. [14] Interrogatories of this kind were extended to a case where the defence relied upon was one of fair comment by the Court of Appeal in Plymouth Mutual Co-Operative and Industrial Society Limited v. Traders Publishing Association Limited [1906] 1 KB 403. Although the issue was said to be different in the case of fair comment, where the question was whether the comment was fair rather than whether the defendant was actuated by malice, Vaughan Williams LJ said that the state of mind of the defendant was relevant to the question of whether “he published it in the spirit of unfairness”: p.414. The approach of Fletcher Moulton LJ at p.419 was the same; the state of mind of the defendant when he published the alleged libel was directly in issue in a case where the defence of fair comment was set up, so as to make the question of what information was before him directly relevant to the issue. Plymouth Mutual was also an example of a case where the newspaper rule was applied. [15] The position came to be settled in the way described by Stanley J (with whom Philp ACJ agreed) in Goding v. Queensland Newspapers Pty Ltd [1966] Qd.R. 545 at 557: “Before the rules were altered in 1949, the English rule of practice when privilege or fair comment was pleaded was that interrogatories could be delivered to ascertain what information any defendant had upon which he founded his comment and the source from which that information was obtained. The purpose of interrogatories on both these matters was to ascertain whether or not the defendant’s comment was justifiable or whether he may not have been actuated by malice. A further practice developed of making an exception to this general rule of practice so that newspapers might not be interrogated in the absence of special circumstances as to the names of the persons from whom the information on which the defendant acted in publishing the alleged libel was derived.” [16] There have been various changes in the court rules about interrogatories, both in England and in Queensland. In England after 1949 leave was required to deliver interrogatories, but this restriction was removed in 1990; according to the 9th edition of Gatley on “Libel and Slander”, p.754, as a result “Interrogatories enjoyed a brief resurgence in popularity” which abated following the advent of witness statements. In Queensland a requirement for leave or a special order to deliver interrogatories was introduced to Order 35 by an amendment on 27 June 1922, removed by an amendment on 14 December 1965, and reintroduced by amendment on 1 May 1994, a situation which has been preserved in the Uniform Civil Procedure Rules. I think these variations in practice have more to do with differing views as to the point at which control on interrogatories should be exercised by the court than with the substantive law as to what is or is not a proper interrogatory. -- 7 of 16 -- 8 [17] Another change made in 1949 in England was the introduction of a Rule which positively precluded interrogatories as to sources of information in actions of libel or slander where fair comment or privilege was relied on as a defence; the rule was initially O.31 r.1a and was said in 1992 to be now incorporated in O.82 r.6: Kerrisk v. The North Queensland Newspaper Co Ltd [1992] 2 Qd.R. 398 at 403 per McPherson ACJ, who noted that the rule had no analogue in Queensland. His Honour in that case went on to say that the identity of the source of information was relevant to the question of good faith which had been pleaded in the reply: p.404. That case contained some discussion of the “newspaper rule” and its scope, which was not there applied. [18] The application of the English authorities under the New South Wales statute was supported by Hunt J in Palmer v. John Fairfax & Sons Ltd (1986) 5 NSWLR 727, where His Honour said that the reversal of the onus of proof (as in Queensland) strengthened the justification for such interrogatories. His Honour said at p.731: “The evidence which is admissible relating to the defendant’s information is that which enables a proper comparison to be made between the information in the defendant’s possession and the material which the defendant published in order to judge: (a) whether the defendant believed in the truth of what was published; and (b) whether the defendant acted reasonably, either in forming that belief or in publishing that material with less than a belief in its truth. … The evidence may be led by the plaintiff in his case in order to destroy the defendant’s case upon that issue by showing that the imputations which were conveyed were not reasonably available as inferences from the information in the possession of the defendant. (The same material may also be admissible in the plaintiff’s case as at least a starting point in showing – as at common law – that the defendant did not have an honest belief in the truth of what was published and was thus malicious … )” This comment was in the context of a defence pleaded of qualified privilege, that is in Queensland a defence under s.16. [19] In Makim v. John Fairfax & Sons Ltd (NSW Supreme Court, Hunt J, 15 June 1990, noted in Australian Defamation Law and Practice at p.40,521) there is a brief discussion about the relevance of the defendant’s state of mind under the New South Wales legislation when there is a plea of qualified privilege. His Honour said that a plaintiff was entitled to interrogate the defendant not only as to his intentions to convey the imputations pleaded by the plaintiff, but also as to the imputations which he intended to convey and, on the ground that it was relevant to reasonableness, (and where it is reasonably foreseeable that a particular imputation could be conveyed) as to whether he gave any consideration to the possibility that the matter complained of would be understood as conveying such an imputation, his belief in the truth of that imputation and what steps he took to prevent the matter complained of from being so understood. The analysis in Makim v. John Fairfax & Sons Ltd (supra) was adopted and followed by Shepherdson J in Taringa 24 Hour Medical Centre Pty Ltd v. Brisbane TV Ltd (Writ 2695/97, Shepherdson J, 22.5.98). -- 8 of 16 -- 9 [20] The traditional approach involves the proposition that whether a comment is “fair” depends not only on its objective fairness, a matter which could be determined by any person to which the relevant material was published, and is ultimately decided by the jury, but also considerations of subjective fairness, that is whether the defendant was trying to be fair when he made the comment or otherwise. Such an approach may seem to be inconsistent with the interpretation of the defence of fair comment under Queensland law by the High Court in Pervan v. North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 326-7, where the majority of the court appeared to support the proposition that malice is irrelevant to comment, although it did not then decide that no aspect of state of mind was relevant. On this basis the defendants submitted that good faith is not an element of the defence of fair comment, which is correct if “good faith” is used in the technical sense, but does not necessarily mean that the state of mind of the defendant is irrelevant. [21] The dual test, involving objective fairness and subjective fairness, was supported by Hunt J as applying to statutory fair comment in New South Wales in Cauley v. Australian Consolidated Press Limited [1981] 1 NSWLR 225. However, His Honour also regarded absence of malice is not a conclusive answer to the defence under the Queensland Act. I can see the sense in requiring some subjective element to the test; a person who publishes a critical comment which he honestly believes in may cause just as much damage to the plaintiff as a person who publishes a comment deliberately to harm the plaintiff, but it is easier to see the latter as morally reprehensible and as someone who ought to pay damages. [22] In Goding (supra) an attempt to enforce Elliott v. Garrett interrogatories ran foul of the newspaper rule, and they were disallowed for that reason. An application to deliver a fresh set intended to avoid these particular difficulties was refused, but allowed on appeal by the High Court: (1965) 113 CLR 170. On that occasion I think the High Court essentially confined itself to the question of whether it was appropriate to give leave to deliver fresh interrogatories, but did comment in passing that the information that the defendant had at the time of publication of the relevant articles about the matter published was material most relevant to the defences raised: p.174. This is some support for the proposition that interrogatories as to the defendant’s state of mind are relevant when a defence of fair comment under s.16 is pleaded. [23] In Collins v. Ryan (1991) 6 BR 229 Hunt J again discussed in some detail the sort of interrogatories which might be delivered in a defamation action where the defendant had pleaded either the defence of qualified privilege, the common law defence of fair comment or the defence of comment given under the New South Wales statute. In the first and second of these it was said the defendant may be interrogated as to his belief in the truth of what he published while in the third it was said the only state of mind which was relevant was that of the author and the only state of his mind which was relevant is the honesty with which he expressed his real opinion; neither malice or any other state of mind on the part of the author can defeat the defence of comment under the New South Wales Act: p.232. Where there was a defence of qualified privilege, the belief of the defendant in the truth of what was published was relevant to the issue except in a limited category of cases, where the matter complained of was of such a character that it was proper to communicate it to another person even without a belief in its truth: p.235. That arose where the defendant was communicating the matter complained of in -- 9 of 16 -- 10 accordance with a sense of duty or in bona fide protection of his own legitimate interests. His Honour went on in that case to require the defendant to answer an interrogatory as to whether the defendant intended to convey the imputations pleaded by the plaintiff: p.236. He also upheld interrogatories directed to the imputations which the defendants intended to convey, to their belief in the truth of those imputations, as to the information which they had in their possession at the time of publication and as to the sources of that information. [24] In Morgan v. John Fairfax & Sons Ltd No. 2 (1991) 23 NSWLR 374, the New South Wales Court of Appeal when dealing with the defence of statutory qualified privilege under s.22(1)(c) of the New South Wales Defamation Act 1974, confirmed the view that belief in any imputation intended to be conveyed was relevant to the statutory defence, and that the extent to which the defendant made inquiries, what source of what information he had on the subject, and the standing position, character and opportunities of knowledge of persons from whom he obtained that information were all relevant to the assessment of whether his belief in the truth of that information was reasonable: p.388. It was argued before me that this was made applicable to s.16 of the Queensland Act by the reference in subsection (2) to good faith comprising in part that “the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion”. [25] The requirements the defendant must establish to make out a defence under s.22(1)(c) of the New South Wales Act are more extensive than those present in relation to issues of good faith under s.16 of the Queensland Act: Kerrisk v. The North Queensland Newspaper Co Ltd [1992] 2 Qd.R. 398 at 409 per Thomas J. At p.410 Thomas J indicated the significance of Elliott v. Garrett interrogatories in view of the combination of the onus being on the plaintiff to negative good faith, and the ordinary inability of a plaintiff to split his case. It is because of these circumstances that interrogatories are likely to be particularly important in an action such as this; the answers may well have a deal of tactical significance in the course of the trial, even if by the time the trial ends there is other evidence available which is of greater significance to the ultimate findings. The approach of Byrne J was similar to that of Thomas J; he also recognised the inquiry the subject of the interrogatory was directed to a point of central importance to the plaintiff’s chances of defeating the claims of qualified protection: p.417. [26] The newspaper rule was extensively criticised by the members of the court in Kerrisk, but was upheld in Hodder v. Queensland Newspapers Pty Ltd [1994] 1 Qd.R. 49. The practical purpose of the rule was supported by Fitzgerald P at p.53 and by the other members of the court at p.56. Although Fitzgerald P at p.55 quoted part of the Porter report on the law of defamation which led to the rule change in England in 1949, in which there is criticism of Elliott v. Garrett interrogatories on the grounds that the answers were hardly ever used in practice, the general thrust of both His Honour’s reasons and those of the other members of the court were based on the acceptance of the “newspaper rule” rather than any general inappropriateness of such interrogatories. [27] The defence which is now in s.16(1)(h) of the Defamation Act 1889, formerly s.377(8) of the Criminal Code, was considered by the High Court in Pervan v. The North Queensland Newspaper Co Ltd (1993) 178 CLR 309. The court rejected an argument that s.16(1)(h) only applied with the comment was based on facts which -- 10 of 16 -- 11 were true, and held that it was sufficient if it was not believed to be untrue, which is part of the requirement that the publication be in good faith: p.327 and see p.325. The facts on which the comment is based must be stated or sufficiently indicated, or sufficiently notorious to enable persons to whom the defamatory matter is published to judge for themselves how far the opinion expressed in the comment is well founded: p.327. The requirements of good faith include the fairness of the comment and the relevant of the comment to the privileged occasion. The court also held that it was not necessary under that section for the publisher to hold the opinion expressed in the defamatory publication, so long as the publication was made in good faith and was objectively fair: p.329. The court also set out what was necessary for the plaintiff to prove in order to show an absence of good faith at p.330. The reasoning at p.330 underlines the importance to a plaintiff of being able to obtain prior to the trial material in a form which can be put in evidence as to whether or not a defendant believed the contents of the publication sued on. [28] There seem to have been cases in Queensland where the Full Court has assumed that the state of mind of the defendant was relevant, at least to some extent, to the question of whether or not a comment was fair; for example see Bamburger v. Mirror Newspapers Ltd [1968] Qd.R. 593 at p.603, and Goding (supra). It seems to be accepted at common law that malice may render comment unfair, and that there is a subjective element in that the comment must be the honest expression of the commentator’s real opinion: Halsbury’s Laws of Australia, para. 145 – 1970, 1975. In view of the number of statements to the contrary, I do not think I should regard the comment in Pervan (supra) at p.326 as indicating that subjective considerations are necessarily irrelevant to the question of whether a comment is fair, so that evidence about the state of mind of the defendant is necessarily irrelevant to that issue. There is, I think, no reason for excluding the requirement that the comment, in order to be fair, should be at least the honest opinion of the person who makes the comment, even if it does not have to be the honest opinion of the person who publishes it. I also regard actual malice as relevant to fairness, although not conclusive on it. I think that if the concept of fairness for the purposes of the statute in Queensland is to be confined to objective consideration only that would represent a change from the common law, and from the general understanding of the operation of the Queensland Act and would be a matter for an appellate court. Once it is accepted that there is some relevance in the state of mind of the defendant, interrogatories directed to that state of mind become proper when to a defence of fair comment is pleaded. [29] With regard to the defences under s.16, the position seems to me to be more clear; it is, I think, well established that interrogatories directed to the state of the defendant’s mind, and his information at the time when he published the relevant material, and as to the sources of that information, are relevant to the question of good faith, and are desirable in principle in circumstances where the plaintiff has the onus of proving an absence of good faith. It seems that for these reasons such interrogatories are still commonly ordered to be answered in Australia, subject only to the “newspaper rule” which has no application in the present case. If there is to be a refusal on principle to continue to allow Elliott v. Garrett interrogatories, that is a matter which should be decided by an appellate court. [30] The defendants argued that interrogatory no. 2 was uncertain because of the use of the expression “statements contained in the circular”, since the “statements” were -- 11 of 16 -- 12 not defined and the meanings to be attributed to the statements were not identified. I think that the term “statements” was probably used because of a desire to avoid classification by the plaintiff, which may not be accepted either by the defendant or ultimately by the jury, of the statements into statements of fact or statements of opinion. I think there is no great difficulty in saying that the circular consists of statements; what is fact and what is opinion is a matter for the jury: Pervan (supra) at p.317. The interrogatory is directed to the inquiries made about such statements prior to the distribution of the circular, including the identification of the relevant sources of information, both people and documents. All of these are, I think, conventional Elliott v. Garrett inquiries within the limits identified by Hunt J. The question is not based on an assumption (which may not be correct) that the relevant defendant believed that the words were true, nor does it assume that the statements carried any particular imputation. Paragraphs (f) and (g), directed to whether an inquiry was made of the plaintiff, were probably suggested by the comments of the High Court in Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520 at 574; although those comments were directed to a category of qualified privilege which was found by the High Court to exist at common law, they support the view that such considerations are relevant to a determination of whether there is “good faith” for the purposes of s.16, so that answers admitting an absence of inquiry of the plaintiff (if that proves to be the answer given) would be relevant and admissible (although not conclusive) on that issue. Part (h) is directed to the same issues, although in a different form of words; they involve an attempt to investigate the same issue in another way. [31] The defences pleaded under s.16(1) of the Act are directed generally to the alleged defamatory matter, but the defence of fair comment under s.14(1)(h) is pleaded specifically in respect of certain statements in the circular alleged in the defence to be matters of comment: para. 13A. There does not appear to be an attempt in the pleading to tie up the defence of fair comment with the imputations alleged on behalf of the plaintiff, and, in so far as interrogatories have to be supported on the basis of a plea of fair comment, it would be necessary to do this by reference only to such matters as are alleged in the defence to amount to comments, and perhaps the express statements of fact contained in the circular relied on supporting those comments: para. 13B. I think, however, that in the present case it is not necessary to perform this analysis, because of the significance of the defence under s.16. In any event the defendants’ state of mind in respect of all of the matters complained of by the plaintiff is relevant to the question of damages; this applies to both the plaintiff’s allegation in support of exemplary or aggravated damages that the defendants acted knowing that the imputations were false or with a reckless indifference as to their truth or falsity, and the defendants’ allegation in support of mitigation of damages of an honest belief on the part of the defendants in the truth of any statement of fact unlawfully published (that is, any statement alleged by the plaintiff and found by the jury to have been unlawfully published which could be any of the matters alleged on the part of the plaintiff if the jury agree) and that any comments made were honestly made on the basis of facts believed to be true: para. 13I(a), (b) and (c). In effect, the defendant is saying that if any of those imputations are made out and the jury think that the imputation is a matter of fact, the defendant honestly believed the fact to be true, and if the jury think the imputation was a matter of comment, it was a comment honestly made on the basis of facts honestly believed to be true. All this, I think, makes relevant the defendants' state of mind as -- 12 of 16 -- 13 to all the statements in the material published in the circular, and all of the imputations alleged by the plaintiff. I think Interrogatory 2 (and indeed the other interrogatories) are relevant to the issues raised on the pleadings going to damages, and that is sufficient. [32] During argument I raised the question of whether interrogatory 2(a) should be confined to the statements in those parts of the material quoted in para. 4 of the second further amended statement of claim as actually mention the plaintiff, that is paras. 3, 5 and 6; on reflection and with the benefit of considering the authorities it seems to me that that would not be appropriate, as the issues depend on the meaning to be attributed to the whole of the matter pleaded in para. 4 and all of that could be relevant to the plaintiff’s attempt to prove an absence of good faith. [33] In my opinion, interrogatory 2 does not seek to discover evidence which the defendants intend to adduce at the trial and the manner in which they intend to prove their case; if the interrogatory is directed to matters which are relevant and seek admission which could properly be put in evidence in support of the plaintiff’s case, the fact that this might incidentally expose some evidence which would otherwise have been led on behalf of the defendants as part of their case is irrelevant and not a reason for not answering the interrogatory. The level of detail in the questioning is commensurate with that used in such interrogatories in other cases; the level of detail in the answer will depend on the extent to which the defendants actually made relevant inquiries. I note that the current pleading of the defendants, the second further amended defence, in a number of areas pleads matters in considerable detail. The fact that the onus of proving an absence of good faith is on the plaintiff is not something which makes this a fishing exercise; on the contrary the authorities indicate that it is a factor which supports the appropriateness of such interrogatories. [34] In my opinion, overall, question 2 is a proper interrogatory and ought to be answered by each of the defendants. It follows that the current answer, which is merely an objection to answer, is insufficient. [35] Interrogatory 3 inquires as to the knowledge or belief prior to the distribution of the circular of the defendant in relation to each of the matters which are pleaded as imputations in para. 10 of the second further amended Statement of Claim. This is in similar form to the interrogatory 3(b) in Taringa 24 Hour Medical Centre Pty Ltd (supra) which Shepherdson J refused to order, on the basis of the decision of Hunt J in Howard. That was that such an interrogatory could not be answered in the absence of an admission (in an earlier answer) that the defendant had considered the possibility that the matter complained of could be understood as conveying that particular imputation. Such a question appears in interrogatory 4, and indeed in that case such an interrogatory was in a later interrogatory which His Honour did order to be answered, but I take it that His Honour refused to order an answer to 3(b) because it was not conditioned upon an affirmative answer to the relevant part of the later interrogatory, which appears to be the qualification suggested by Hunt J. Hunt J however suggested an alternative qualification, “a case where it was reasonably foreseeable that the imputation could be conveyed”. It is not clear how the foreseeability of the imputation is to be determined, but if it is to be determined on the basis of answering interrogatories it could only be decided by a judge on the hearing of that application. If that is the test then I think it is sufficient to say that -- 13 of 16 -- 14 having considered the material pleaded in para. 4 of the second further amended Statement of Claim, I think that each of the imputations alleged in para. 10 was a reasonably foreseeable imputation to be conveyed by such material. [36] But with all due respect to His Honour, I have difficulty in seeing why an interrogatory of this nature should be so limited. Whether or not the defendant considered at the time the possibility that the matter complained of could be understood as conveying that imputation or whether a reasonable person in his position ought to have done so, there is I think no difficulty in his now saying whether he then had any belief in the proposition which, on the plaintiff’s case which the jury might accept, the circular in fact conveyed. It may be that he did believe in the imputation even if he did not intend to convey it, but if he admits that he did not believe the proposition that the plaintiff relies on and the jury finds that that proposition was an imputation conveyed by the matter published, that would be I think highly relevant to a determination of the issues raised by the pleadings, including as to damages. The interrogatory does not involve an assumption that the matter published does contain the imputations alleged, and therefore does not involve an implied admission to that effect. It seems to me that the reasoning in the authorities to which I have referred justifies an interrogatory in these terms, and I do not agree that it needs to be subject to the qualification referred to in Howard (supra). In my opinion, interrogatory 3 is a proper interrogatory and I will order that it be further answered. [37] As to interrogatory 4, the authorities indicate that the plaintiff is entitled to interrogate the defendant as to his intention to convey the imputations pleaded by the plaintiff. If a jury is satisfied that the material published did convey a particular implication, that that implication was not intended to be conveyed by the defendant is relevant to the issue of qualified privilege. But the plaintiff is also entitled to interrogate the defendant as to what imputations were intended to be conveyed, at least in circumstances where publication is admitted, as it is here: Makim (supra). The plaintiff is not asking the defendants to admit that the matter complained of was in fact understood as conveying the imputations alleged, something which is not permissible: Casey v. Australian Broadcasting Commission [1981] 1 NSWLR 305 at 308. The plaintiff is also entitled to interrogate the defendant as to whether he believed in the imputation which he admits he intended to convey. Part (e) inquires as to whether consideration was given to the possibility that the circular might be understood as conveying any of the imputations pleaded in para. 10 of the Statement of Claim which were not in fact intended by the defendant; it follows from the comments of Hunt J in Howard v. Nationwide Publishing Service, quoted by Shepherdson J in Taringa 24 Hour Medical Centre Pty Ltd (supra) at p.8, that an interrogatory as to this matter must be proper; indeed it is said to lay the foundation for an interrogatory as to whether the defendant had any belief in the truth of such an implication, that is one which the defendant did not intend to be conveyed. Part (e) therefore must be a proper interrogatory. If this is so, Part (f) must also be relevant to the issue of good faith. It seems to me therefore that all parts of interrogatory 4 are proper and should be answered other than by an objection. The interrogatory is in very similar terms to interrogatory 10 which was in issue in Taringa 24 Hour Medical Centre Pty Ltd (supra) and which His Honour ordered to be answered. -- 14 of 16 -- 15 Uniform Civil Procedure Rules [38] The defendants also raise an issue arising under the Uniform Civil Procedure Rules. The interrogatories were originally delivered on 17 March 1999, but there was a failure to respond in accordance with the requirements of either the rules of the District Court (which allowed 10 days: r.177) or the order of Ambrose J (which allowed 14 days). The answers of the first defendant were filed and served on 3 June 1999, but the second and third defendants remain in default when the Uniform Civil Procedure Rules commenced from 1 July 1999. It was submitted that it was necessary to approach the matter on the basis that the new rules applied, and that the plaintiff should be put in the same position as if he now sought to deliver interrogatories under the new rules. It was submitted that there were no accrued rights which arose in relation to the interrogatories. [39] It may be that the obligation imposed by r.177 of the District Court Rules disappeared when those rules were repealed, although it is difficult to see how the obligation imposed by the order of Ambrose J has been in any way affected by the introduction of the new rules. I do not think the plaintiff needs leave to deliver interrogatories because the interrogatories have already been delivered at a time when leave was not required. The question is whether they should be answered, or rather if they should be further answered, since the second and third defendants have now filed answers to interrogatories. There has always been a discretion to refuse to order that interrogatories be further answered, and that discretion is preserved in r.236(2) which gives the court a discretion to order a further answer in a case where a person gives an insufficient answer to an interrogatory. [40] I have found that the answers given to interrogatories 2, 3, and 4 were insufficient, so there is discretion to make an order under r.236(2). The principal considerations in deciding whether to order a further answer are whether the interrogatory is a proper interrogatory, and whether an answer to it is reasonably necessary for the proper and efficient conduct of litigation. For the reasons referred to in the authorities (in particular Kerrisk (supra)), it seems to me that these interrogatories are important given in particular that the plaintiff has the onus to negative good faith and the reluctance of courts to allow a plaintiff to split its case. I am not impressed by the arguments advanced by the Porter Committee; no doubt in many cases the defendant’s answers are unhelpful to the plaintiff, but that is not a reason not to ask the question. I suspect that it may at times be the case that interrogatories which would otherwise be tendered are not tendered because the defendant agrees not to make a no case submission but to go into evidence, and the plaintiff prefers to rely on cross-examination. It may be as well that some defendants are less than frank in answering interrogatories. If courts would routinely allow plaintiffs to split their cases, and require a defendant to go into evidence once the plaintiff had proved the matters alleged in the Statements of Claim on which the onus is on the plaintiff, the position might be different, but that is not the general practice in Queensland at the present time. In my opinion, these interrogatories ought to be answered and answered properly. I am prepared to exercise my discretion under r.236 to so order. [41] The defendants applied under r.234 to be relieved from answering the interrogatories; for reasons I have just given it is not appropriate to grant this relief and that application is dismissed. -- 15 of 16 -- 16 Order The second and third defendants do not oppose orders that they provide further and better answers to interrogatories 6, 17, 18 and 19(a). In view of this, it is unnecessary to consider the relief sought in the alternative in para. 2 of the amended application. The orders that I make therefore on the plaintiff’s amended application is: Order that the first, second and third defendants file and serve further and better answers to interrogatories numbered 2, 3, 4, 6, 17, 18 and 19(a) delivered on 17 March 1999 for their examination, within 21 days from the date of this order. [42] There was some separate argument about costs arising from the fact that two of the defendants filed and served answers to interrogatories after the application had been filed, and that the scope of the application was narrowed by the defendants withdrawing opposition in respect of a number of the interrogatories the day before the application was heard, but on the view that I take of the interrogatories the application was fully justified at all times and the defendants should pay the plaintiff’s costs of and incidental to the application to be assessed. I will allow the plaintiff to proceed to have the costs assessed forthwith. [43] The defendants’application is dismissed with costs. -- 16 of 16 --