Federal Court of Australia

V’landys v Australian Broadcasting Corporation [2020] FCA 1264

ORDERS

THE COURT ORDERS THAT:

1.    The parties are to confer and provide short minutes of orders which give effect to this judgment within 48 hours.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1    The applicant in this matter, Mr Peter V’landys AM, has commenced proceedings against the respondents, the Australian Broadcasting Corporation (ABC) and one of its employed journalists, Ms Caro Meldrum-Hanna. He alleges that a report titled “The final race: The dark side of the horse racing industry” which was authored by Ms Meldrum-Hanna and broadcast by the ABC as part of its current affairs program called “7.30” (the report) conveyed defamatory imputations about him in his capacity as Chief Executive Officer of Racing NSW. He claims damages, including aggravated damages for the hurt and injury to his reputation arising from the broadcast of the report and its publication online. For their part, the ABC and Ms Meldrum-Hanna admit they were responsible for publishing the report but deny that it conveyed the defamatory imputations alleged by Mr V’landys. The trial of the action has been set down for a two-day hearing to commence on 23 September 2020.

2    Mr V’landys has filed an interlocutory application in which he seeks leave to amend his statement of claim, an order permitting him to administer interrogatories and an order requiring the ABC and Ms Meldrum-Hanna to discover documents within certain specified categories. He also seeks leave to have subpoenas issued to two individuals who were interviewed as part of the report. The central issue raised by Mr V’landys’ application is the sufficiency and viability of his proposed amendments to the statement of claim. The effect of the proposed amendments is to replace the existing particulars of his aggravated damages claim with new particulars. The new particulars allege, amongst other things, that in publishing the report which conveyed the defamatory imputations, the ABC and Ms Meldrum-Hanna were actuated by malice and Mr V’landys knew that to be the case. The particulars assert that malice on the part of the ABC and Ms Meldrum-Hanna can be inferred from the fact, so it is alleged, that they “actively deceived” Mr V’landys about certain matters, had edited the report in a particular way that portrayed him in a particularly bad light and intended to convey imputations which they knew to be false. The orders sought by Mr V’landys in relation to interrogatories and discovery in effect seek information and documents relevant to the new particulars of aggravated damages. For that reason, the availability of those interlocutory orders depends on the sufficiency and viability of the new particularised case of aggravated damages.

3    The ABC and Ms Meldrum-Hanna oppose the amendment primarily on the basis that the proposed new particulars of aggravated damages are, in their submission, deficient and defective. They contend, in particular, that the serious allegations which underlie the new plea of malice do not adequately state the facts relied upon in support of those allegations. They also submit that the new claim that Mr V’landys knew that the ABC and Ms Meldrum-Hanna acted with malice is not supported by the outline of Mr V’landys’ evidence which has been served in accordance with the Court’s orders. Finally, they note that no, or no reasonable, explanation has been given for the late change to the particulars of aggravated damages and that the interlocutory orders, if made, may give rise to prejudice, including the potential loss of the current trial listing.

4    In order to resolve this interlocutory dispute it is necessary to give further consideration to the nature of Mr V’landys’ case, the chronology of the proceedings thus far and the relevant principles concerning aggravated damages for defamation.

Relevant chronology of the proceedings to date

5    Mr V’landys commenced the proceedings by filing an originating application and statement of claim on 21 February 2020. The statement of claim is short and in relevantly conventional terms. It relies on three publications (or “matters complained of” in the familiar lingo used in defamation proceedings): the first being the broadcast of the report on the 7.30 program on 17 October 2019; the second being the posting of a URL link to the report on the ABC’s website on the same day; and the third being the posting of a URL link to the transcript of the report again on the same day.

6    The imputations that Mr V’landys alleged were conveyed by the three “matters complained of” were as follows:

1.     [Mr V’landys], as Chief Executive Officer of Racing NSW, callously permitted the wholesale slaughter of thoroughbred horses;

2.     [Mr V’landys], because of his indifference to their suffering, ignored the cruelty to which thoroughbred horses were subjected to in a Queensland abattoir;

3.     [Mr V’landys] dishonestly asserted that no racehorses were sent to knackeries for slaughter in New South Wales when he knew that was untrue; and

4.     [Mr V’landys] dishonestly asserted that Racing New South Wales cared about the welfare of thoroughbred horses and took adequate steps to protect their welfare when he knew that was untrue.

7    Mr V’landys claims that by reason of the matters complained of he had been “greatly injured” and that his “business, personal and professional reputation” had been, continues to be and will be “brought into public disrepute, ridicule and contempt”. He claims damages, including aggravated damages, special damages, interest and costs. The statement of claim as filed included the following particulars of aggravated damages:

(a)     The [ABC and Ms Meldrum-Hanna] behaved dishonestly towards [Mr V’landys] in that they had available to them and knew of the contents of the relevant video and failed to disclose this to [Mr V’landys] and in doing so deprived [Mr V’landys] of the opportunity to explain as was fact that Racing NSW has no jurisdiction over Queensland.

(b)     The failure of the [ABC and Ms Meldrum-Hanna] to apologise to [Mr V’landys] despite [Mr V’landys] informing the [ABC and Ms Meldrum-Hanna] of the imputations conveyed by the matters complained of are false and defamatory – see letter from [Mr V’landys’] solicitors to the [ABC and Ms Meldrum-Hanna] dated 6 December 2019.

(c)     The continued publication by the [ABC and Ms Meldrum-Hanna] of the second matter complained of on the ABC website.

8    It is important to emphasise that, while the original particulars of aggravated damages allege that the ABC and Ms Meldrum-Hanna had “behaved dishonestly towards” Mr V’landys because they failed to disclose the contents of “the relevant video” to him, it was not expressly alleged that they were actuated by malice or an improper purpose in publishing any of the matters complained of. Nor was it alleged that Mr V’landys’ hurt was aggravated because he was aware that the ABC and Ms Meldrum-Hanna had acted dishonestly towards him, let alone that he knew that they were actuated by an improper motive, or that they had acted with malice.

9    The ABC and Ms Meldrum-Hanna filed a defence on 17 April 2020. They admit publication but deny that the matters complained of were defamatory and deny that the report conveyed any of the alleged imputations. They accordingly deny that Mr V’landys is entitled to any of the relief claimed by him.

10    The first case management hearing was held on 20 April 2020, shortly after the defence was filed. At that case management hearing, counsel appearing from Mr V’landys observed, with respect, entirely accurately, that no “positive defences” had been filed and that the only issues at trial will be whether the imputations are carried and defamatory, and, if it is found that they were, an assessment of damages. Brief reference was, however, made to an issue relating to aggravated damages. That occurred in the context of a proposal, advanced on behalf of Mr V’landys, that there be general discovery. The Court noted, in that context, that if there was to be an order for discovery, given the very limited nature of the defence, any order for discovery should be limited to the discovery of a defined and narrow category of documents. Counsel for Mr V’landys submitted, in response, that the ABC and Ms Meldrum-Hanna may have documents in their possession relevant to the claim for aggravated damages. That claim was said to be “pretty limited” and to comprise “what the [ABC and Ms Meldrum-Hanna] had available to them prior to publication, namely the contents of the video” and “continued publication on the ABC website and failure to apologise”.

11    There was no indication given, at the first case management hearing, that the claim for aggravated damages would include an allegation of malice, let alone a claim that it would be alleged that the ABC and Ms Meldrum-Hanna had acted with malice and that Mr V’landys knew that to be the case. In the circumstances, no order for discovery was made. It was suggested that the question of discovery would or may be revisited after the parties had exchanged their outlines of evidence. The matter was set down for trial on 23 and 24 September 2020, essentially at the request of Mr V’landys and given the indication that the issues that would need to be resolved at trial were very narrow and confined.

12    On 26 May 2020, Mr V’landys’ solicitors sent the ABC and Ms Meldrum-Hanna what were said to be amended particulars of aggravated damages. It is unnecessary to set out the detail of this iteration of the amended particulars. It suffices to note the following matters concerning them. First, they are in different terms to the amended particulars that Mr V’landys now seeks to rely on. Second, they again do not expressly allege malice on the part of the ABC and Ms Meldrum-Hanna. Rather, they contain a series of allegations that the ABC and Ms Meldrum-Hanna “behaved dishonestly and/or with reckless indifference” towards Mr V’landys. Third, they did, however, include some factual allegations that broadly correspond to the factual allegations in the particulars upon which Mr V’landys now seeks to rely. It was, for example, alleged that the ABC and Ms Meldrum-Hanna ignored Mr V’landys’ requests to be provided with evidence of the mistreatment of horses, that the program edited out Mr V’landys’ requests in that regard and, in effect, that the program had presented his interview in a “misleading manner”. Fourth, this iteration of the particulars did not allege that Mr V’landys was aware of the alleged dishonesty or reckless indifference of the ABC or Ms Meldrum-Hanna.

13    On 3 June 2020, the ABC wrote to Mr V’landys’ solicitors and asserted that the proposed amended particulars were not proper particulars of aggravated damages. It is unnecessary to detail what was said in that regard in that letter, or the further correspondence between the parties on that topic which followed.

14    The matter next came before the Court for a further case management hearing on 9 July 2020. On this occasion, Mr V’landys’ counsel indicated that there had been some “correspondence in the background in relation to [the] particulars of aggravated damages” but that the “toing and froing” on that topic should not prevent orders being made concerning categories of discovery and proposed interrogatories. The orders sought in that regard by Mr V’landys were, however, opposed by counsel for the ABC and Ms Meldrum-Hanna who indicated that there was a dispute between the parties concerning the particulars of aggravated damages. It was submitted that the dispute about the particulars and the question of discovery and interrogatories would more appropriately be dealt with after Mr V’landys had served all of the outlines of evidence upon which he wished to rely. It was noted, in that context, that while Mr V’landys’ outline of evidence had been served, Mr V’landys had indicated that there were still outstanding outlines of evidence to be served.

15    It is important to note what was said by counsel for Mr V’landys, in reply, in relation to the nature of his claim for aggravated damages. It was said that it would be alleged that “the preparation of the program was a matter that gives rise to aggravation” and, in particular, that the “disturbing footage of horses being mistreated” was “interwoven with an interview that [Mr V’landys] consented to in relation to policies around the mistreatment of horses”. The “crux” of the claim for aggravated damages was said to be that “the ABC and the journalist … had that footage and intended to use that footage and intended to do so interwoven with an interview with [Mr V’landys] and didn’t show it to him or tell him about it when they interviewed him”. The aggravated damages was said to arise from the hurt that Mr V’landys experienced when he watched the program.

16    The following points may be made concerning this articulation of Mr V’landys’ claim for aggravated damages. First, while counsel did not suggest that malice on the part of the ABC or Ms Meldrum-Hanna would be alleged, as will be seen, the underlying factual basis of the claim which was articulated by counsel was not significantly or materially different from the underlying facts referred to in the particulars that are now sought to be relied on by Mr V’landys. Second, it was made tolerably clear that the basis of the claim for aggravated damages was essentially the additional hurt that Mr V’landys experienced when he saw the program and, in effect, realised that he had been “set-up” or “ambushed”. As will be seen, while the particulars that Mr V’landys now seeks to include in the pleading are perhaps not entirely pellucid in this regard, that appears to be the essential nature of the case that is intended to be conveyed by them.

17    Ultimately, the Court ordered that Mr V’landys serve any further outlines of evidence by 17 July 2020 and that the matter be listed for a further case management hearing on 27 July 2020. While it was noted that the question of whether the particulars of aggravated damages relied on by Mr V’landys’ were sufficient to establish or give rise to aggravated damages was ultimately a matter to be determined at the trial, it was stressed to the parties that the question of whether orders should be made concerning discovery and interrogatories appeared to hinge on the particulars of aggravated damages and that, given there was a September 2020 trial date, those outstanding issues would need to be resolved at the next case management hearing.

18    Shortly prior to the case management hearing on 27 July 2020, Mr V’landys’ solicitors wrote to the ABC and advised that Mr V’landys intended to proceed to trial on the basis of the particulars of aggravated damages that had been provided on 26 May 2020. The letter also enclosed proposed categories of discovery, interrogatories and subpoenas, all of which were drafted on the basis of the issues that were said to be thrown up by the particulars of aggravated damages. It does not appear that the ABC replied in writing to that letter by the time of the case management hearing.

19    At the case management hearing on 27 July 2020, senior counsel for Mr V’landys pressed the Court to make orders for the discovery of categories of documents and for the administration of interrogatories which arose out of the particulars of aggravated damages. Senior counsel articulated Mr V’landys’ claim for aggravated damages as being essentially that the ABC “ambushed” Mr V’landys. It was said that during Ms Meldrum-Hanna’s interview of Mr V’landys, he repeatedly asked if he could be shown the evidence or footage of the mistreatment of horses and that Ms Meldrum-Hanna refused that request. It was also said that the ABC “intercut” the footage of the mistreatment of horses with the “footage” of the interview with Mr V’landys and that this was done “to make [Mr V’landys] look bad”. It was indicated that it would be submitted, at trial, that the obvious inference to be drawn from the fact that Mr V’landys’ request to see the footage was declined and from the way the program had been presented is that the ABC and Ms Meldrum-Hanna’s purpose was to make Mr V’landys look bad. Senior counsel indicated, however, that he did not wish to rely on inference alone and that he wanted to see if “we can prove it directly”. That was said to be the reason for the application for limited discovery and interrogatories.

20    Counsel for the ABC and Ms Meldrum-Hanna opposed the application for discovery and interrogatories. It is unnecessary to set out the submissions that were made in that regard in any detail. It suffices to say that counsel maintained, in effect, that the particulars which had been provided were deficient or defective. The main point that was advanced was that, by reason of s 36 of the Defamation Act 2005 (NSW), malice or reckless indifference on the part of the defendant is insufficient to make out aggravated damages unless the plaintiff was aware of that state of mind. It was noted, in that regard, that while the proposed particulars alleged that Mr V’landys knew that the ABC and Ms Meldrum-Hanna had acted with malice, he did not say as much in his own outline of evidence. Indeed, Mr V’landys’ outline of evidence suggested that he had not even viewed the relevant program.

21    It was in those circumstances that the Court ordered that Mr V’landys file an interlocutory application which sought leave to amend his pleading to include the particulars of aggravated damages and orders for discovery and interrogatories. That was done so as to regularise and bring the interlocutory dispute to a head and to ensure that the parties had proper notice of what was being proposed.

The amended particulars of aggravated damages

22    The amended particulars of aggravated damages upon which Mr V’landys now seeks to rely are in the following terms:

The hurt and harm to [Mr V’landys] were increased by his knowledge of the following matters:

   (a)    the falsity of the imputations.

(b)    the malice of the [ABC and Ms Meldrum-Hanna]. Such malice will be inferred from the following facts and matters:

(i)    the [ABC and Ms Meldrum-Hanna] actively deceived [Mr V’Landys] as to their purpose in seeking an interview with [Mr V’landys] by the email dated 11 October 2019 from Amy Donaldson, Producer, 7.30 Report. Such email was deceitful for the following reasons:

A.    it misrepresented the nature and the content of the proposed story (“a story analysing the animal welfare reforms and integrity measures introduced by racing regulators since 2016/2017”). In fact, the [ABC and Ms Meldrum-Hanna] intended to broadcast a sensational expose of alleged cruelty to racehorses being sent to knackeries for slaughter;

B.    it failed honestly to disclose the true nature of the intended segment; and

C.    it failed to disclose to [Mr V’landys] the fact that the [ABC and Ms Meldrum-Hanna] had possession of an intended broadcast sickening footage of horses being treated with appalling cruelty for which they knew [Mr V’landys] and Racing New South Wales bore no responsibility.

(ii)    during the course of the interview between [Ms Meldrum-Hanna] and [Mr V’landys] on 15 October 2019, the [ABC and Ms Meldrum-Hanna] actively deceived [Mr V’landys] by failing to disclose to [Mr V’landys] the material referred to in paragraph 2(a)(iii) above and by failing to show such footage to him despite [Mr V’landys’] requests that they show to him whatever evidence of cruelty that the [ABC and Ms Meldrum-Hanna] had.

(iii)    the editing of the program and the manner in which [it] was composed were dishonest:

A.    the [ABC and Ms Meldrum-Hanna] failed to include in the material broadcast [Mr V’landys’] repeated statements during the interview that Racing New South Wales and therefore [Mr V’landys] himself had no power or jurisdiction in the respective treatment of horses interstate and thereby mislead [sic] viewers into thinking that Racing New South Wales and [Mr V’landys] were responsible for the sickening cruelty shown in the footage; and

B.    the [ABC and Ms Meldrum-Hanna] intercut with the broadcast segments of [Mr V’landys’] interview sickening footage of cruelty to horses so as to make it appear, contrary to the truth, that [Mr V’landys] was responsible for such cruelty or condoned or had callous disregard for it when they knew he was not responsible for and did not condone the appalling treatment shown on the broadcast footage.

(iv)     the [ABC and Ms Meldrum-Hanna] intended to go and convey the pleaded imputations to their viewers knowing that they were false.

(v)    the [ABC and Ms Meldrum-Hanna], knowing that the composition of the segment in question would convey the pleaded imputations failed to give to [Mr V’landys] an opportunity to deny, dispute or contradict them.

(c)    the continued publication of the defamatory matter complained of on the [ABC’s] website.

(d)    the failure and refusal of the [ABC and Ms Meldrum-Hanna] to apologise.

23    It is unnecessary to consider, for the purposes of this application, particulars (a), (c) and (d). Whether those particulars are made out and whether they suffice to justify an award of aggravated damages are matters that can and should be determined at trial if Mr V’landys otherwise makes out his claim that he was defamed. The critical particular to consider is particular (b) as it is that particular which is said to provide the basis or justification for the proposed orders for discovery and interrogatories.

24    The following features or elements of particular (b) may be noted.

25    First, it is alleged that the ABC and Ms Meldrum-Hanna acted with malice.

26    Second, it is said that malice is to be inferred from three alleged facts or circumstances. The first is said to be that the ABC and Ms Meldrum-Hanna deceived Mr V’landys about the purpose for which he was being interviewed. The deception was said to be evidenced by the terms of an email sent to Mr V’landys which, it is alleged, misrepresented the nature of the proposed “story”, failed to disclose the true nature of the report and failed to disclose that the ABC and Ms Meldrum-Hanna were in possession of “sickening footage” of horses being mistreated. The second alleged fact from which malice was to be inferred is said to be that the ABC and Ms Meldrum-Hanna deceived Mr V’landys by failing to disclose to him, or show to him, the “sickening footage”, despite his requests that he be shown any evidence of cruelty that the ABC and Ms Meldrum-Hanna had in their possession. The third alleged fact is said to be the manner in which the program was edited – in particular, that it failed to include statements that had been made by Mr V’landys during the interview and that his interview had been “intercut” with the “sickening footage” of cruelty to horses.

27    Third, it is alleged that Mr V’landys had knowledge of each of the “matters” referred to in the particulars. There is a certain lack of specificity and a degree of ambiguity in this element of the particulars. It is, in particular, unclear when or how it is alleged that Mr V’landys came to know that the ABC and Ms Meldrum-Hanna were actuated by malice. While it is alleged that malice on the part of the ABC and Ms Meldrum-Hanna can be inferred from the listed facts or circumstances, it is not said that Mr V’landys’ knowledge of malice was, in effect, an inference or conclusion drawn by him from those facts and circumstances. As will be seen, however, that is the only sensible and reasonable way to read the particulars. It is also consistent with the way that counsel for Mr V’landys have endeavoured to articulate his claim for aggravated damages.

The ABC’s and Ms Meldrum-Hanna’s contentions concerning the particulars

28    The ABC and Ms Meldrum-Hanna maintained that the new iteration of the particulars of aggravated damages were not proper or adequate particulars. They advanced essentially six arguments for why that was the case. In short summary, those arguments were as follows.

29    The first argument was that the factual allegations which were said to support the inference of malice were really just facts that went to the hurt to Mr V’landys’ feelings and were therefore relevant to ordinary compensatory damages. It was submitted, in that regard, that there was nothing to stop Mr V’landys relying on his claim that he was misled, or that the program was edited in a particular way, in support of his case for compensatory damages. Those facts did not, however, justify turning this case into a case about the ABC’s and Ms Meldrum-Hanna’s state of mind.

30    The second argument was that there was no proper articulation of the alleged improper purpose which was necessary to support a finding of malice.

31    The third argument was that there was simply a bald assertion that Mr V’landys knew that the ABC and Ms Meldrum-Hanna were actuated by malice and no proper articulation of how it was said he came to know that fact.

32    The fourth argument, which was in part related to the third, was that there was nothing in Mr V’landys’ outline of evidence to suggest that he knew that the ABC and Ms Meldrum-Hanna were actuated by malice, let alone that his hurt was aggravated by that knowledge.

33    The fifth argument was that there was no proper articulation of the facts which were said to support the serious allegations that the ABC and Ms Meldrum-Hanna deceived Mr V’landys and thereby acted with malice. It was pointed out, in this context, that r 16.42 of the Federal Court Rules 2011 (Cth) provides that a “party who pleads fraud, misrepresentation, unconscionable conduct, breach of trust, wilful default or undue influence must state in the pleading particulars of the facts on which the party relies”. It was contended, in effect, that an allegation of malice falls within this rule and Mr V’landys’ proposed particulars of malice did not include sufficient particulars of the facts upon which he relied in support of that plea.

34    The sixth argument was that the particulars do not allege that the relevant conduct of the ABC and Ms Meldrum-Hanna lacked bona fides or was improper or unjustifiable.

Mr V’landys’ outline of evidence

35    As has just been noted, one of the arguments advanced on behalf of the ABC and Ms Meldrum-Hanna relied on the content of Mr V’landys’ outline of evidence. That outline of evidence was tendered and admitted into evidence as an indication of the evidence that it was expected that Mr V’landys would give at trial. It was admitted on that limited basis.

36    It is not proposed to set out the detail of the outline of evidence. Following are the critical points relevant to this application.

37    First, the outline refers to the email from the ABC which requested that Mr V’landys participate in the interview, being the email which is referred to in the particulars. It also refers to Mr V’landys’ state of mind concerning the interview based on the email. If Mr V’landys gives evidence broadly in accordance with his outline and that evidence is accepted, it would be reasonably open to find that he was relevantly misled or deceived by the email. Whether that was in fact the case is a matter for trial and may depend not only on whether Mr V’landys’ evidence is accepted, but also on any other evidence which may be adduced about the events and circumstances that occurred before and during the interview.

38    Second, the outline includes Mr V’landys’ recollection of certain things that were said and not said during the course of the interview. It also refers to certain things that Mr V’landys would have said or done had he been made aware of certain matters during the course of the interview. If Mr V’landys gives evidence broadly in accordance with his outline and that evidence is accepted, it may again be open to find that he was relevantly misled or deceived about the nature of the program for which he was being interviewed and that he did not say certain things that he would have said had he not been deceived. Whether that was in fact the case is a matter for trial and may depend on what, if any, other evidence is adduced about the interview.

39    Third, the outline indicates that Mr V’landys was unable to view the program on the night that it was broadcast. He was, however, told certain things about the program by someone who he had asked to watch the program and report to him about it. That person watched the program and reported certain things to Mr V’landys about it, including that: the program portrayed Mr V’landys and the racing industry in a “bad way”; the program was a “stitch up”; the program did not contain much of what Mr V’landys had said during the interview about positive steps that Racing NSW had taken to improve equine welfare; the program included extensive footage of horses being killed with distressing vision which would invoke significant emotion in the viewer; and that Mr V’landys came across poorly because the interview footage was intertwined with the distressing vision of the treatment of horses.

40    Fourth, the outline states that, as a result of what he had been told about the program, Mr V’landys was “immediately shocked, distressed and dismayed and concerned about the contents of the program”.

41    Fifth, the outline indicates that after the program, Racing NSW received numerous abusive emails and communications concerning the program. Mr V’landys saw those emails.

42    Sixth, the outline states that Mr V’landys is “particularly hurt by the fact that the program has conveyed him as a regulator without integrity and with a reckless indifference or disregard to the welfare of race horses and animals” and that Mr V’landys regards that as “having significantly and unfairly undermined his reputation as a regulator and his standing in the community”. It also states that Mr V’landys “rapidly became aware that rather than presenting his position in a fair and accurate manner from the lengthy interview, the ABC has instead shown excerpts of the interview in a manner so as to infer that he and Racing NSW was responsible for, and had jurisdiction over the treatment of horses in a Queensland abattoir” and that was “particularly hurtful given the extent to which Mr V’landys in his interview … had outlined the jurisdictional limitations on Racing NSW’s authority”.

43    Seventh, the outline states that, having been told about the nature of the program, Mr V’landys decided not to review personally the program because he was “too upset and distressed to do so”.

Relevant principles in relation to aggravated damages

44    This is not the proper occasion for a detailed treatise on the law of aggravated damages. It suffices to note the following relevant principles.

45    Aggravated damages are a form of compensatory damages; they are not awarded to punish a respondent: Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at [446(f)].

46    Aggravated damages may be awarded where there is a lack of bona fides in the respondent’s conduct, or where the conduct is improper or unjustifiable: Triggell v Pheeney (1951) 82 CLR 497 at 514. Conduct with those characteristics may be taken to increase or aggravate the harm the defamation caused or may reasonably be supposed to have caused: Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653; Hockey at [446(g)]. Where conduct of a respondent which is improper, unjustifiable or lacking in bona fides is established, an increase to the applicant’s sense of hurt may be presumed from all the evidence: Wagner v Harbour Radio Pty Ltd [2018] QSC 201; 2018 ATR 82-405 at [743]. It is not always necessary for the applicant to give evidence that the aggravating behaviour of the respondent “augmented his [or her] sense of hurt”: Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 250; Flegg v Hallett [2015] QSC 167; 2015 ATR 82-231 at [232], [237].

47    Circumstances of aggravation can be found in the respondent’s conduct from the commission of the tort up until the day of judgment: Broome v Cassell & Co Ltd [1972] AC 1027 at 1071; Wilson v Bauer Media Pty Ltd [2017] VSC 521 at [59] (statement of principle not disturbed on appeal in Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674).

48    Aggravated damages may be appropriate where the defamatory matter is published in an extravagant, excessive or sensationalist manner: Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 79; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [34].

49    The respondent’s aggravating conduct may be found in the circumstances of publication where the respondent increased the harm suffered by the applicant by recklessly inflicting damage on the applicant’s reputation, or failing to investigate the defamatory allegations before publishing them: Andrews at 243-244; Wilson at [86].

50    Section 36 of the Defamation Act provides as follows:

In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.

51    In Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89, Applegarth J (with whom McMurdo P and Gotterson JA agreed) stated as follows, after referring to the equivalent provision in the Queensland legislation (at [40]):

Thus malice or a reckless indifference to the truth or falsity of the publication does not warrant, of itself, an award of aggravated damages. However, if the plaintiff is aware of the defendant’s state of mind and this aggravates the plaintiff’s hurt feelings, then damages may be increased in order to appropriately compensate. If the defendant’s conduct is improper or unjustifiable, this aggravation may be reflected in a separate award of aggravated damages.

52    In Flegg, however, Peter Lyons J addressed a different means by which a finding of malice on the part of the defendant may be relevant to aggravated damages in circumstances where the plaintiff was not aware that the defendant was actuated by malice. His Honour accepted (at [233]-[235]) the proposition that malice may justify an award of aggravated damages, even if the plaintiff was unaware of the defendant’s malice, where the “defendant’s conduct seeking to maximise the effect of his publications was motivated by malice, and had the effect of increasing harm”.

Are the proposed particulars proper particulars of aggravated damage?

53    The main purposes or objectives of particulars are, in general terms: to inform an opponent of the nature of the case it has to meet; to prevent an opponent from being taken by surprise at the hearing; to enable an opponent to know what evidence it should collect; to define and limit the issues in the proceedings; and to restrict the scope of the evidence to those issues: Berry v CCL Secure Pty Ltd [2020] HCA 27 at [72], citing Banque Commerciale SA (En liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287; see also Conway v Mercedes-Benz Australia / Pacific Pty Ltd ACN 004 411 410 [2010] FCA 72 at [7] and the cases referred to there. The particulars of aggravated damages in a defamation case must be sufficient to meet those objectives. They must also state, with sufficient particularity, facts which, if proved at trial, would provide a proper basis for the award of aggravated damages.

54    It would not be unfair to say that the particulars of aggravated damages upon which Mr V’landys now seeks to rely are less than perfect or even ideal. As has already been noted, they lack specificity and are somewhat ambiguous in certain respects. For the reasons that follow, however, they are nevertheless sufficient to enable the ABC and Ms Meldrum-Hanna to know the case they have to meet and to limit and define the issues in relation to the claim for aggravated damage and the evidence that may be relevant to that claim. Perhaps more importantly, read fairly and in light of the relevant principles concerning aggravated damages, the alleged facts and circumstances outlined in the particulars, if ultimately proved and accepted at trial, may arguably provide a proper basis for the award of aggravated damages having regard to the relevant principles referred to earlier.

55    There are really three elements to Mr V’landys’ case concerning aggravated damages.

56    The first element concerns the nature of the report itself. The key allegation in that regard is that the program was put together or edited in such a way that footage of the interview with Mr V’landys was interweaved or intercut with the disturbing footage of horses being mistreated. This was done, so it is alleged, in circumstances where Mr V’landys was not made fully aware of the nature of the program and why he was being interviewed and was not shown or made aware of the disturbing footage. It is also alleged, in this context, that relevant parts of Mr V’landys’ interview which, in context, may have made his and Racing NSW’s position concerning cruelty to horses such as that depicted in the footage clear were edited misleadingly out of the report as broadcast.

57    It is at least reasonably arguable that this element of the aggravated damages claim, if made out, could alone justify aggravated damages. As noted earlier, in some circumstances aggravated damages may be appropriate where the defamatory matter is published in an extravagant, excessive or sensationalist manner. It is arguably open to characterise this element of Mr V’landys’ claim as amounting to a claim that the program, and the way it was said to portray Mr V’landys, was extravagant, excessive or sensationalist. That would appear to be the central thrust of Mr V’landys’ arguments based on the way that the program was edited.

58    The second element of the claim concerns the intentions or state of mind of the ABC and Ms Meldrum-Hanna in putting together the program in the way it was. The key allegations in this regard are that they deliberately or intentionally deceived Mr V’landys about the nature of the program and the interview, deliberately did not make him aware of the disturbing footage of horse cruelty and “dishonestly” edited the program in such a way that it juxtaposed the footage of the interview and the disturbing footage of the cruelty so that the program had maximum impact. In short, it is alleged that Mr V’landys was not only set up or ambushed, but deliberately set up and ambushed. That state of mind, so it is alleged, is sufficient to constitute or amount to malice.

59    While the particulars do not say so in terms, it is tolerably clear that Mr V’landys’ case is essentially that the ABC and Ms Meldrum-Hanna prepared and put the report together in a way that was calculated and intended to maximise the hurt or harm to Mr V’landys’ reputation. That is consistent with the language of “ambush” and “set up”. It is also consistent with the use of the word “dishonest” in the particulars relating to the editing of the program. The use of the word “dishonest” in this context is potentially ambiguous, though the factual allegations that are said to support that allegation make it fairly plain that the basis of that allegation is that the editing was done in such a way as to deliberately mislead viewers and deliberately convey a meaning which was “contrary to the truth”. It is reasonably arguable that those factual allegations, if made out, are capable of supporting the allegation of dishonesty.

60    These are, of course, very serious allegations. It remains to be seen whether they can or will be established at trial. For the purpose of this interlocutory application, however, it suffices to say that if those allegations are proved and there is a finding of malice on the part of the ABC and Ms Meldrum-Hanna, it is at least reasonably arguable that such a finding could justify aggravated damages even if it was not established that Mr V’landys was aware of that malice. That is because it would, in those circumstances, be at least reasonably arguable that the conduct of the ABC and Ms Meldrum-Hanna in putting the program together in the way they did had the effect of maximising the impact or effect of the program and that their conduct in that regard was motivated by their malice. In that respect, the allegations are arguably akin or analogous to those that were advanced and accepted as justifying an award of aggravated damages in Flegg at [233]-[235].

61    The third element of Mr V’landys’ aggravated damages case is, in effect, that he knew that the ABC and Ms Meldrum-Hanna were actuated by malice. As noted earlier, there is a degree of ambiguity in the way this allegation is put in the particulars. It is, however, tolerably clear having regard to both the particulars and the way that counsel have articulated Mr V’landys’ case, that what is really being put is that, when Mr V’landys was made aware of the nature of the program as broadcast, he drew the inference or conclusion that he had been deliberately ambushed or set up. He drew that inference or conclusion from the combination of his knowledge of what he had been told about the program and the reasons for the interview at the outset, his knowledge of the parts of his interview that had not been included in the program, his knowledge that he had not been told about the footage of cruelty to horses before or during the interview and his knowledge, based on what he had been told, about the interweaving of the footage of his interview and the footage of the cruelty to horses.

62    It may perhaps be accepted that the outline of Mr V’landys’ evidence does not clearly or expressly refer to him drawing this inference, or forming a belief that the ABC and Ms Meldrum-Hanna were motivated by an improper purpose of damaging his reputation and causing him hurt. That said, there are parts of the outline which, read fairly and in context, may reasonably be taken to suggest that the general effect of his anticipated evidence is that he did infer or conclude from what he had been told about the program, coupled with his knowledge of what he had and had not been told prior to and during the interview, and what he had said during the interview which was apparently not included in the program, that the ABC and Ms Meldrum-Hanna must have been improperly motivated. As noted earlier, for example, the outline states that Mr V’landys formed the view that the program was “seeking to hold him responsible”, that he was the “key target of criticism” and that, in effect, the program had not presented his position in a “fair and accurate manner”.

63    It must again be emphasised that the question of whether any of the above findings or conclusions are available or can be made will depend on the evidence, considered as a whole, which is actually led at trial. None of what has just been said should be taken to suggest that any such findings will be made. At this point, the Court has before it only an outline of Mr V’landys’ anticipated evidence. It might reasonably be expected that if Mr V’landys gives evidence broadly along the lines of the outline, his evidence is likely to be tested and challenged in cross-examination. His evidence will also need to be considered along with all the other evidence. For the purposes of this interlocutory application, however, it is sufficient to conclude that it is at least reasonably arguable that the factual allegations outlined in the particulars of aggravated damages upon which Mr V’landys now seeks to rely, if proven at trial, are capable of justifying an award of aggravated damages in one or more of the ways just explained.

64    It should also be emphasised, in this context, that the parties have been advised that an order will be made that any evidence not included, in substance, in the outline will not be permitted to be adduced without leave and that Mr V’landys cannot be cross-examined about what is in and what is not in the outline without leave. The same orders will be made in relation to the outlines of evidence of all other witnesses.

65    As for the arguments advanced by the ABC and Ms Meldrum-Hanna concerning the inadequacy of the particulars, it may be accepted that many of the facts referred to in the particulars would, in any event, be relevant to the award of general compensatory damages to Mr V’landys if it is found that he was defamed. That does not mean that those facts, in combination, may not also be relevant to whether aggravated compensatory damages are warranted.

66    It may also be accepted, as contended by the ABC and Ms Meldrum-Hanna, that the particulars do not clearly identify what is said to be the actuating improper purpose. The ABC and Ms Meldrum-Hanna relied, in this context, on what was said concerning malice in Roberts v Bass (2002) 212 CLR 1 at [75] and [76]. It should perhaps be noted, in this context, that Roberts v Bass concerned malice in the context of qualified privilege. It is at least arguable, as senior counsel for Mr V’landys submitted, that it does not establish that it is necessary for a plaintiff who relies on malice in support of an award of aggravated damages to identify the actuating improper purpose. It is, however, unnecessary to decide that issue. As discussed earlier, it is relevantly clear that Mr V’landys’ allegation, in essence, is that the ABC’s and Ms Meldrum-Hanna’s actuating motive in acting as they allegedly did was to damage his reputation. That is consistent with the language of “ambush” and “set up”.

67    As for the arguments based on the fact that the particulars simply assert knowledge on the part of Mr V’landys and that Mr V’landys’ outline of evidence does not state that he knew that the ABC and Ms Meldrum-Hanna were actuated by bias, those arguments have effectively already been dealt with. It may be accepted that the particulars are somewhat vague and ambiguous in relation to the allegation that Mr V’landys had knowledge of malice on the part of the ABC and Ms Meldrum-Hanna. The particulars may, however, be fairly read as alleging that Mr V’landys came to infer or conclude that the ABC and Ms Meldrum-Hanna were actuated by bias when he was told about the nature of the program and put that together with what he knew about the circumstances in which he came to be interviewed and what he had and had not been told. That was effectively how counsel articulated Mr V’landys’ case. Mr V’landys’ outline of evidence, fairly read, also arguably appears to provide an available evidentiary basis for this aspect of his case.

68    As for the argument that the particulars contain no proper articulation of the facts that were said to support the serious allegations upon which the allegation of malice was based, and that the particulars therefore did not satisfy r 16.42 of the Rules, a fair reading of the particulars reveals that they contain an adequate statement of the facts relied on in support of the allegations. The relevant factual allegations are, in substance, that the email sent to Mr V’landys inviting him to the interview was deliberately deceptive, that the ABC and Ms Meldrum-Hanna deliberately deceived him by failing to disclose to him the disturbing footage of cruelty to horses and that the program was edited in such a way as to mislead and give an appearance which was contrary to the truth. While it remains to be seen whether any of those allegations can or will be proved at trial, they are sufficiently spelt out in the particulars to put the ABC and Ms Meldrum-Hanna on notice of the case they have to meet.

69    Finally, the argument that the particulars do not state, in terms, that the alleged conduct of the ABC and Ms Meldrum-Hanna was lacking in bona fides, or improper or unjustified, has little merit. The implicit contention that at all particulars of aggravated damages have to include the incantation, drawn from Triggell v Pheeney, that the defendant’s conduct lacked bona fides, or was improper or unjustified, cannot be accepted. The serious allegations made by Mr V’landys concerning the conduct and state of mind of the ABC and Ms Meldrum-Hanna, if established at trial, could arguably support a finding that their conduct was improper and unjustifiable. That is sufficient in terms of the adequacy of the particulars.

70    For all the foregoing reasons, the proposed particulars of aggravated damages upon which Mr V’landys now seeks to rely are adequate and not deficient as contended by the ABC and Ms Meldrum-Hanna.

Should leave to amend be granted?

71    In the oral submissions made on behalf of the ABC and Ms Meldrum-Hanna, some arguments were put as to why the Court should not exercise its discretion to permit the amendment. It was pointed out that it was Mr V’landys who urged the Court to list the matter for trial at the earliest opportunity, that the trial was to take place in the near future and that Mr V’landys, or, more particularly, his solicitors and counsel, had not provided any explanation for why the most recent iteration of the particulars had been raised at such a late stage of the proceedings.

72    There is some force in those submissions. The issue concerning the particulars of aggravated damages had been bubbling under the surface for some time. It should have been raised, in an amendment application, at a much earlier time. The latest iteration of the particulars was also only very recently advanced. The only explanation given for that was a submission by senior counsel for Mr V’landys which was to the effect that he thought he could do a better job of articulating the claim than had previously been done. That is not really a proper or reasonable explanation.

73    The relevant principles in relation to amendment applications are well-settled and well-known. It is unnecessary to recite them in any detail here. Nor is it necessary to include references to the well-known authorities in this area. In summary, the power of the Court to grant or refuse leave to amend must be exercised in the way that best promotes the Court’s overarching purpose to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. The Court’s power to grant leave to amend is broad and has the remedial objective of ensuring that any defect in the pleadings is cured and that the real questions in the controversy are properly agitated. The object of the Court is not to punish parties for mistakes made in the course of their case, but to correct errors with the result that a decision can be made on the real matters in controversy.

74    Leave to amend should generally be granted unless the proposed amendment is futile, such that the issue sought to be raised by the amendment has no reasonable prospects of success, or would be liable to be struck out as not raising a reasonable cause of action, or where the amendment would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by the award of costs. There are, however, limits to be placed upon re-pleading. An amendment application should not be approached on the basis that a party is entitled to raise an arguable claim subject to the payment of costs by way of compensation. An order for costs may not always provide sufficient compensation and therefore achieve a just resolution.

75    The matters that the Court should consider in exercising its discretion whether or not to grant leave to amend include: the nature and importance of the amendment to the party applying for it; the extent of the delay and the costs associated with the amendment; the prejudice that might be assumed to follow from the amendment, and that which is shown; the explanation for any delay in applying for that leave; and the parties’ choices to date in the litigation and the consequences of those choices.

76    The onus is on the party seeking leave to amend to persuade the Court that such leave should be given.

77    As already indicated, the amendment application has been made at a relatively late stage of the proceedings and close to the trial date. There has been no reasonable explanation for the delay. That said, the ABC and Ms Meldrum-Hanna bear some responsibility for the delay as well. The issue concerning the particulars of aggravated damages was raised at a fairly early stage of the proceedings. The ABC and Ms Meldrum-Hanna did not press for it to be resolved. Indeed, at one point they suggested that the issue should not be determined until all the outlines of evidence had been served. Perhaps more significantly, the ABC and Ms Meldrum-Hanna did not contend that they would be materially prejudiced by the late amendment, let alone lead any evidence to make good any such contention. There was a faint suggestion that the amendment might prejudice the trial date, though it was not suggested that the ABC and Ms Meldrum-Hanna would not, in light of the amendment, be sufficiently prepared for the trial, or would need to apply for an adjournment.

78    In all the circumstances, and having considered and weighed up the competing considerations, the preferable course is to permit the amendment. The desirability of permitting all the issues in dispute to be litigated outweighs the adverse considerations arising from the lateness of the application and the inadequacy of the explanation for the delay. That is particularly so given the absence of any demonstrable prejudice to the ABC and Ms Meldrum-Hanna.

Interrogatories, Discovery and subpoenas

79    Having determined that Mr V’landys should be granted leave to amend his statement of claim to include the new particulars of aggravated damages, it is next necessary to determine whether the Court should exercise its discretion to permit Mr V’landys to administer interrogatories, to order limited discovery by the ABC and Ms Meldrum-Hanna and to issue subpoenas to two persons. It is clear that both the interrogatories and limited discovery proposed by Mr V’landys are directed to his claim for aggravated damages. The purpose of the subpoenas is less clear.

Interrogatories

80    Rule 21.01(1) of the Rules provides that “[a] party may apply to the Court for an order that another party provide written answers to interrogatories”. Rule 21.01(2) requires that an application for interrogatories be accompanied by an affidavit annexing the proposed interrogatories. Mr V’landys complied with that requirement.

81    The interrogatories proposed by Mr V’landys are in the following terms:

[Mr V’landys’] proposed interrogatories of the [ABC and Ms Meldrum-Hanna] are:

1.    Did any person on behalf of the [ABC] make a decision not to show the Meramist Footage which was shown during the broadcast (including immediately before, during and immediately after the broadcast of the footage of [Mr V’landys]) to [Mr V’landys] or to inform [Mr V’landys] of the Meramist Footage?

   2.    If the answer to 1 is in the affirmative, who was that person or persons?

3.    State, based on enquiry of each such person, what the reasons each such person had for failing to:

a.    show to [Mr V’landys];

b.    inform [Mr V’landys] of;

the Meramist Footage and its nature?

4.    When did the [ABC and Ms Meldrum-Hanna] become aware of the existence and nature of the Meramist Footage?

5.    Was [Ms Meldrum-Hanna] aware that of the limitations on Racing New South Wales' jurisdiction and power, in that it does not have jurisdiction over persons outside NSW and also does not have jurisdiction over persons in NSW, who are not licensed by it and are not otherwise associated with thoroughbred racing?

6.    If yes to 5 above, why was that fact not referred to in the matters complained of?

7.    Did the [ABC and Ms Meldrum-Hanna] believe that the imputations pleaded in the statement of claim were true? Answer in respect of each such imputation.

   8.    If yes to 7 above, state the basis for such belief.

9.    Did the [ABC and Ms Meldrum-Hanna] intend to convey any of the pleaded imputations and, if so, which?

For the purpose of these interrogatories, Meramist Footage means the footage of mistreatment of horses which was shown during the broadcast.

82    The administration of interrogatories is a form of discovery. It has been noted, in that context, that just as the Court has now limited the scope for wide ranging discovery, “the circumstances [in] which leave to administer interrogatories will be granted is increasingly rare”: Austal Ships Pty Ltd v Incat Australia Pty Ltd (No 3) [2010] FCA 795; 272 ALR 177 at [7].

83    In Hanson-Young v Leyonhjelm (No 2) [2019] FCA 393 at [14]-[15], White J summarised the relevant principles concerning the exercise of the discretion to administer interrogatories as follows:

In general, the Court will order a party to provide written answers to interrogatories only when it is necessary for the fair disposition of the proceeding or to save costs. The ultimate aim of the process of discovery of information by interrogatories is to shorten the trial and save costs: Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2012] FCA 290 at [25]. Interrogatories enable a party to litigation to obtain discovery of material facts in order to support or establish proof of his or her own case, to find out the case (but not the evidence) the party has to meet, or to destroy or damage the case brought by his or her opponent: ibid. In Alliance Craton at [36], Mansfield J noted that, if the energy, effort, time and cost required to address the interrogatories is not reasonably proportionate to the end sought to be achieved, then the interrogatories should not be allowed.

One of the reasons why the Court seldom orders a party to answer interrogatories is that the process is often an expensive and unnecessary means of securing the proper disclosure of information: Alliance Craton at [27]. However, the relative infrequency with which orders are made for the answering of interrogatories does not mean that such orders will not be appropriate in a given case. Ultimately, an evaluation has to be made having regard to the particular circumstances of each case.

84    The permissible objects of interrogatories when administered include obtaining admissions as to facts which will support the case of the interrogating party and obtaining admissions which will destroy or damage the case of the party interrogated: Austal Ships at [7].

85    It is tolerably clear that the object of the interrogatories proposed by Mr V’landys is to obtain admissions which will support his case concerning aggravated damages. In short, he seeks to secure admissions concerning the facts that he contends will support his case that the ABC and Ms Meldrum-Hanna were actuated by bias, in particular concerning the alleged or apparent decision not to disclose to him the footage of the cruelty to horses and the alleged or apparent decision not to include in the program a statement to the effect that Racing NSW did not have jurisdiction over persons outside New South Wales. It is also readily apparent that Mr V’landys apprehends that neither Ms Meldrum-Hanna nor anyone else at the ABC who was involved in the publication of the program will give evidence. If that turns out to be the case, his case concerning malice will depend entirely on such inferences that can be drawn from the objective facts established by his evidence.

86    The main objection to the administration of interrogatories that was advanced on behalf of the ABC and Ms Meldrum-Hanna was that the issues addressed by the proposed interrogatories did not arise because the particulars of aggravated damage were deficient. For the reasons already given, that contention must be rejected. Save for that objection, the only real submission that was made in opposition to the interrogatories was that the Court should not, in the circumstances, arm Mr V’landys with knowledge that he did not otherwise possess. The suggestion appeared to be that Mr V’landys would then be able to give evidence about his knowledge of the matters revealed by the answers to the interrogatories. It was also said that Mr V’landys should not be permitted to “fish around for the intention that is barely alleged” in the particulars.

87    The proposed interrogatories cannot fairly be characterised as an exercise in “fishing”. They are directed to a very narrow range of issues that are addressed in the particulars of aggravated damages. It is also doubtful that it could fairly be said that the object of the interrogatories is to arm Mr V’landys with knowledge for the purposes of his evidence. The object of the interrogatories would appear to be to secure evidence or admissions of the state of mind of the ABC and Ms Meldrum-Hanna with a view to supporting an inference of malice on their part. The question whether Mr V’landys knew that the ABC and Ms Meldrum-Hanna had that state of mind is a separate matter. It is difficult to see how Mr V’landys could make use of any of the answers to the interrogatories when giving evidence about his knowledge or state of mind.

88    The ABC and Ms Meldrum-Hanna did not object to the form of the interrogatories, or submit that the energy, effort, time or cost required to address them was not reasonably proportionate.

89    In all the circumstances, this would appear to be a case where it is appropriate for the Court to exercise its discretion to allow Mr V’landys to administer interrogatories. The interrogatories are very confined and will not cause the ABC or Ms Meldrum-Hanna to incur significant expense or expend considerable time. The apparent object of the interrogatories is permissible and does not involve “fishing”.

Discovery

90    The parties’ submissions gave very little attention to the question of discovery. The discovery sought by Mr V’landys was a form of non-standard discovery pursuant to r 20.15(1)(c) of the Rules. The proposed categories of discovery are as follows:

1    All documents recording any reaction by any viewer of the 7:30 Report to the 7:30 Report including social media posts.

2    All documents recording communications referring to one or more of the following:

2.1    The footage of the treatment of horses at Meramist abattoir in Queensland;

   2.2    The decision to not show [Mr V’landys] that footage;

2.3    The decision to not tell [Mr V’landys] about the alleged mistreatment of horses at Meramist abattoir in Queensland;

2.4    The decision to give Elio Celotto and Professor McGreevy the opportunity to review the footage and comment on it

created or received during the period from 17 April 2019 to 30 November 2019 (inclusive).

3    All documents recording communications referring to one or more of the following:

3.1    The decision to not include details of the jurisdictional limits of Racing NSW and its Local Rule 114 in the 7.30 program on 17 October 2019;

3.2    The decision to not inform viewers of the 7.30 program on 17 October 2019 that [Mr V’landys] had not been provided with an opportunity to view the footage of the treatment of horses at Meramist abattoir in Queensland;

3.3    The decision to not inform viewers of the 7.30 program on 17 October 2019 that [Mr V’landys] had not been informed about the alleged mistreatment of horses at Meramist abattoir in Queensland.

   3.4    The decision to edit the 7.30 program on 17 October 2019 so that:

(a)    the program intertwined footage of the interview of [Mr V’landys] with the distressing vision of the treatment of horses;

(b)    the program included statements of Elio Celotto and Professor McGreevy that were critical of "regulators" intertwined with footage of the interview of [Mr V’landys].

created or received during the period from 17 April 2019 to 30 November 2019 (inclusive).

4    All documents recording communications between the [ABC and Ms Meldrum-Hanna] (or any representative or agent of the [ABC and Ms Meldrum-Hanna]) and Elio Celotto or Professor McGreevy referring to one or more of the following:

4.1    [Mr V’landys];

4.2    Racing New South Wales;

4.3    Racing New South Wales Equine Welfare Program;

4.4    New South Wales Rules of Racing;

4.5    regulators and/or regulation; and

created or received during the period from 17 April 2019 to 30 November 2019 (inclusive).

91    It is readily apparent that the categories of documents sought are, for the most part, documents relevant to Mr V’landys’ claim for aggravated damages.

92    It is unnecessary to consider the relevant principles concerning discovery or to address at length the question whether a form of limited discovery is appropriate in the circumstances of this case. That is all the more so given that the parties advanced virtually no submissions in relation to those matters. It suffices to say that, in all the circumstances, a form of limited discovery by categories of documents is appropriate in the circumstances of this case.

93    The categories of documents proposed by Mr V’landys, however, are not entirely acceptable. The following changes should be made.

94    First, it is not appropriate to require the ABC and Ms Meldrum-Hanna to produce documents within the first category at this late stage of the proceeding. That category does not appear to be relevant to the amended particulars of aggravated damages. No submissions were made as to the forensic purpose of seeking the discovery of documents within this category. To the extent that documents within that category might be said to be relevant to the extent of publication, the ABC filed a statement of extent of publication as long ago as 24 April 2020. Mr V’landys did not suggest that that statement was deficient in any respect. In any event, the category is expressed in overly broad and general terms and would be oppressive to respond to at this late stage of the proceedings.

95    There are also issues as to the form of category two. First, it should be limited to communications between officers, employees or agents of the ABC who were involved in the production and publication of the relevant program. Second, the terms of paragraphs 2.2 and 2.3 suggest or imply that a decision was made. They should be expressed in terms of “any decision that was made”. Third, there should be no requirement to discover documents within paragraphs 2.1 and 2.4. As for 2.1, it is expressed in overly broad and general terms and would be oppressive at this late stage of the proceeding. As for 2.4, there is no legitimate forensic purpose in requiring documents within this category to be discovered. The particulars of aggravated damages do not refer to any decision to give Mr Elio Celotto and Professor Paul McGreevy the opportunity to review the footage and comment on it.

96    As for category three, paragraphs 3.1, 3.2, 3.3 and 3.4 should be amended so that the references to “The decision” read as “Any decision which was made”. The requirement to discover documents within paragraph 3.4(b) should be deleted for the same reasons as those given in relation to paragraph 2.4 of category 2.

97    Category 4 should be deleted. It is in overly broad terms and does not address any fact, matter or circumstances raised by the new particulars of aggravated damages. No proper basis has been shown for requiring discovery of documents within that category at this late stage of the proceeding.

Subpoenas

98    Mr V’landys applied for leave to issue subpoenas to Mr Celotto and Professor McGreevy. Leave to issue subpoenas to those two persons had previously been refused in chambers. No evidence was adduced and no substantive submissions were made in support of the application for leave to issue these subpoenas. Interviews with Mr Celotto and Professor McGreevy were included in the program. The new particulars of aggravated damages, however, make no reference whatsoever to either of them. No legitimate forensic purpose was identified for the issue of subpoenas to either Mr Celotto or Professor McGreevy. The subpoenas are also expressed in extremely broad terms. They appear to amount to little more than an impermissible “fishing expedition”, to use the metaphor so frequently used in the context of subpoenas.

99    Leave to issue subpoenas to Mr Celotto and Professor McGreevy should accordingly be refused.

Conclusion and disposition

100    Mr V’landys should be given leave to amend his statement of claim to include new particulars of his claim for aggravated damages in the form proposed by him. He should also be granted leave to administer interrogatories in the form proposed by him. An order should be made for discovery in relation to categories of documents. The categories should be narrower than the categories proposed by Mr V’landys and should incorporate the changes referred to in these reasons for judgment. Leave to issue subpoenas to Mr Celotto and Professor McGreevy should be refused.

101    The parties should provide chambers with draft orders which give effect to the terms of this judgment within 48 hours. The orders should provide a reasonable time for the ABC and Ms Meldrum-Hanna to answer the interrogatories and discover documents within the defined categories. They should also include provision for the ABC and Ms Meldrum-Hanna to serve outlines of the evidence of any witnesses that they propose to call at trial. It will also be necessary for there to be a further case management hearing before trial. Finally, the parties should confer with a view to agreeing an appropriate order concerning the costs of this interlocutory application. If there is any disagreement concerning the form and content of the orders, the matter should be relisted as a matter of urgency.

102    It should finally be added that if, contrary to the indications given thus far, compliance with the orders relating to interrogatories and discovery in fact gives rise to any prejudice, or makes it difficult for the matter to proceed fairly to trial on 23 September 2020, the matter should be relisted immediately so that issue can be addressed.

Associate:

Dated:    17 August 2020