Belbin v McLean & Hayes [1995] QCA 182

1 COURT OF APPEAL [1995] QCA 182 PINCUS JA de JERSEY J BYRNE J Appeal No 51 of 1995 AMELIA ANN BELBIN Applicant/Plaintiff v. HAMISH McLEAN and DANIELLE HAYES Respondents/Defen dants BRISBANE ..DATE 07/04/95 JUDGMENT -- 1 of 5 -- 070495 JUDGMENT 2 BYRNE J: This is an application for leave to appeal against a decision of a Judge of District Courts refusing an application seeking an order for the answering of interrogatories. The applicant is the plaintiff in proceedings issued out of the District Court at Brisbane seeking damages for defamation. The plaint alleges that the defendants, or one or other of them, defamed the plaintiff orally and in writing. Before delivering a defence, the solicitors for the defendants sought particulars of the exact words alleged to have been spoken and written. The plaint had not identified them. Rather it had referred to the defendants as having said words "to the effect" that, and then stated the effect of them. With respect to the written statement, the pleading spoke of words "to the effect" that, and then proceeded to state the effect of the writing. The applicant's solicitors wrote to those persons who were referred to in the plaint as persons to whom the allegedly defamatory statements had been published, asking them to state the exact words used. The reason for this was that the applicant was not present on any of the occasions mentioned in the plaint where the words were said to have been published orally. The plaintiff does not have a copy of the writing. This information as to the exact words was therefore sought from those said to have been present at the time of publication to enable a response to be given to the request for particulars of the exact words. Some of the -- 2 of 5 -- 070495 JUDGMENT 3 persons to whom the defamatory matter is said to have been published declined to respond to the inquiries. Others said that they could not remember the exact words. In December 1994 the applicant's solicitors wrote to the respondent's solicitors enclosing interrogatories and asked that they be answered by both defendants. The letter contended that the case was an appropriate one for interrogatories to be answered before a defence was filed because, as it was said, the applicant was unable to indicate the exact words at this stage of the proceedings. The respondents refused to answer any of the interrogatories, objecting to all of them on grounds that no defence had then been filed and that the interrogatories were fishing or embarrassing. The primary Judge refused the application. Leave to appeal is now sought in reliance upon a contention that an important question of law or justice is involved in the refusal to order that the interrogatories be answered. Among other things, it was said that the Court ought to consider the circumstances in which leave should be granted in defamation cases to interrogate before a defence is filed in circumstances where, as here, the plaintiff was not present when the allegedly defamatory words were published, does not have a copy of the allegedly defamatory writings and, notwithstanding reasonable efforts to ascertain the exact words, is unable to procure them. -- 3 of 5 -- 070495 JUDGMENT 4 However, the primary Judge did not refuse to order that the interrogatories be answered because a defence had not been delivered. As His Honour's reasons disclosed, he declined to order an answer to the interrogatories because he thought that the particular form of words which had been used in them had the consequence that the interrogatories were too wide or fishing. There is no doubt that the Court has a discretion to order interrogatories before a defence is delivered in a defamation case in circumstances such as those with which the applicant was confronted. The proposed appeal does not therefore involve the consideration of any important question of law of justice relating to the exercise of such a discretion. The issue which the appeal would raise is simply whether the primary Judge was correct in thinking that the particular choice of words used in the interrogatories had the consequence that they were too wide or fishing. No wider point is involved in resolving these questions. It follows that no important question of law or justice is involved. The applicant has not yet sought to deliver a second set of interrogatories. Even if leave to do so were refused, it would not follow that the plaintiff's prospects of success in the litigation would be materially affected. In my view, there is no important question of law or justice involved and the application should be refused. PINCUS JA: It appears never to have been decided that if a -- 4 of 5 -- 070495 JUDGMENT 5 plaintiff in a defamation action is unable to plead the precise words of oral defamation but does the best he or she can, the action cannot be pursued. It seems to me quite improbable that that is the law. In the present case, as Mr Justice Byrne has pointed out, the basis of the decision below was a view the learned primary Judge took as to the propriety of the form of the interrogatories. Whether or not His Honour's opinion in that respect was correct, it does not seem to me to raise any important question and I would also dismiss the application. de JERSEY J: I agree. PINCUS JA: The application for leave to appeal will be dismissed. ----- -- 5 of 5 --