Discovery and Partial Allowance of Interrogatories in Defamation Case

The court ordered discovery and partially allowed interrogatories in a defamation case, emphasising relevance and proportionality in its decision.

Supreme Court New South Wales

Medium Neutral Citation: [NAME] v State of New South Wales (No 4) [2015] NSWSC 1073 Hearing dates: 27 March 2015 Date of orders: 27 March 2015 Decision date: 27 March 2015 Jurisdiction: Common Law Before: McCallum J Decision: Orders as to interrogatories Catchwords: DEFAMATION – procedure – interrogatories Category: Procedural and other rulings Parties: [NAME] (plaintiff) State of New South Wales (first defendant) [NAME] (second defendant) [NAME] (third defendant) Representation: Counsel: [redacted] S [NAME]: Plaintiff self-represented Crown Solicitor for New South Wales (defendants) File Number(s): 2014/145430 Publication restriction: None

Judgment – Ex Tempore 1. HER HONOUR: This is a second listing of proceedings for defamation. The plaintiff seeks discovery and interrogatories. The categories for discovery are set out in a document provided by the plaintiff headed "Draft Discovery". Each of the categories, after the hearing of argument from both parties, is now in an agreed form. I am satisfied that there should be an order that the defendants give discovery of those categories as amended during argument.

2. The plaintiff also seeks a direction that the defendants answer interrogatories. The interrogatories sought are set out in a document headed "Draft Interrogatories". Some of those that were objected to by the defendants are now agreed following exchanges during the argument just heard.

3. My rulings in respect of those matters are as follows. I consider that the defendants should answer interrogatory 2, as amended in accordance with the amendment proposed by the plaintiff at paragraph 17 of his written submissions.

4. Interrogatories 3 and 4 first seek the identification of documents held by the first defendant regarding certain complaints and secondly, in interrogatory 4, an explanation as to complaints for which documents are not held, in substance, to the effect that if such documents are not held, why not? [NAME] contends that if the author of a report about him on which he sues did not record a serious complaint it follows that she must have known that it was a false complaint. He submits that would be an issue relevant to the assessment of her state of mind, which is a fact in issue, having regard to the defences pleaded.

5. Whilst the defendants accept that the interrogatories would be relevant to credit, they submit that they would not be relevant to the fact in issue of the second defendant's state of mind.

6. In my view, having regard to the objects of Practice Note SC CL 4, whilst I can accept there is some relevance in the material sought, I do not think it is sufficiently important, having regard to the requirement of proportionality, to compel the defendants to answer those questions. Interrogatories 3 and 4 will not be allowed.

7. The defendants object to interrogatory 6A which asks as to any student the second defendant knew had received a medical diagnosis of ADHD or ODD and the means by which the second defendant knew of that diagnosis. Ms [NAME] submitted, on behalf of the defendants, that that question again goes to no issue in the proceedings. [NAME] submitted that it goes to the second defendant's honesty because, for example, if she did not know on the strength of a formal medical diagnosis of the medical condition in question, that would reveal malice in her authorship of the report. I do not think that information is appropriately the subject of an interrogatory in the proceedings. I note that the defendants have agreed to answer interrogatories 5 and 6B. Interrogatory 6A will not be allowed.

8. The remaining interrogatories in dispute are interrogatories 7 and 8, by which the plaintiff asks what formal psychiatric qualifications the second defendant held so as to entitle her to make the statement of fact in a professional teaching report that he, the plaintiff, "felt overwhelmed by his classes". In my view, those interrogatories assume a premise I do not accept, namely, that a person needs a formal psychiatric qualification in order to record such an observation. Those interrogatories will not be allowed.

9. The defendants have accepted that interrogatories 10 and 12 should be allowed for the same reason as interrogatory 2.

10. The plaintiff, in light of an indication I have given him, does not press interrogatories 9 and 11.

11.

Accordingly, the order of the Court will be that:

1. The defendants give discovery of the categories of documents listed in the draft discovery document with the amendments agreed during argument.

2. That the defendants answer interrogatories 1, 2 as amended during argument, and interrogatories 5, 6B, 10 and 12 as amended during argument.

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