Federal Court of Australia

Molan v Dailymail.com Australia Pty Limited [2021] FCA 336

ORDERS

THE COURT ORDERS THAT:

1.    With the qualifications identified in the reasons for judgment:

(a)    subject to the concession made by the respondent consenting to an interrogatory for oral communications corresponding to agreed discovery categories as to information possessed, the disputed interrogation of the respondent by the applicant not be allowed; and

(b)    the applicant’s disputed discovery of the respondent be allowed.

2.    The respondent’s disputed interrogation of the applicant not be allowed.

3.    The costs of and incidental to the interlocutory hearing on 19 March 2021 be costs in the cause.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an adjudication of a dispute over discovery and interrogatories in a defamation proceeding brought in this Court under the Defamation Act 2005 (NSW). Unless expressly identified to the contrary, all section numbers in these reasons are references to sections of that Act.

2    Each side seeks discovery and interrogatories of the other, and for each there is a reasonable measure of agreement. What remains for decision are several points of disagreement in relation to both discovery by, and interrogation of, the applicant, and in relation to interrogation of the respondent.

3    The Court’s Defamation Practice Note makes it clear at [6.2] that ordinarily a party will not be ordered to answer interrogatories unless the Court is satisfied that it is necessary for the resolution of the real issues in dispute in the proceedings. The practice note is less emphatic in relation to discovery, leaving that to the Court’s Central Practice Note at [10.2] which, by reference to the rules of the Court, effectively requires a discovery application not to be made in the first place unless it will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible: r 20.11, Federal Court Rules 2011 (Cth).

4    The proceeding brought by the applicant, a sports commentator employed by Nine Entertainment Co Holdings Limited, concerns published comments about what was said by her in the course of a live radio broadcast. The three matters complained of are in an edition of an online newspaper publication, the Daily Mail Australia, and in two tweets in relation to the same subject matter published via @DailyMailAU. Each matter complained of arises out of an aspect of a panel discussion on the radio show, during which the topic of pronouncing the names of rugby league players from the Pacific Islands came up. The online newspaper publication reported that the applicant had put on an accent in attempting to pronounce a name, and that she had later said this was a reference to what had taken place on the same topic in a prior broadcast of the show several months earlier. It is claimed that this behaviour was adversely characterised in the publications, including by reference to the views of members of the Pacific Islander community.

5    The pleaded imputations do not need to be repeated except by way of a general and imprecise summary for the purposes of this decision on the disputed compulsory disclosure sought by each side of the other. In summary, the asserted imputations conveyed by the first matter complained of, being an online newspaper story (with a subset of asserted imputations conveyed by the second and third matters complained of, being related tweets) are to the effect that:

(a)    the applicant had deliberately mocked the names of Pacific Islanders;

(b)    she had lied about this by falsely claiming that it was an “in-joke” between herself and her co-commentators;

(c)    she was was callous in that mocking conduct and having deliberately engaged in that mocking had refused to apologise despite the offence she had caused;

(d)    her inability to pronounce names was so disrespectful and incompetent that she was unfit to be a rugby league commentator;

(e)    she was an arrogant woman of white privilege in refusing to learn how to pronounce the names or to apologise for deliberately mocking them;

(f)    she had previously cynically used the death of George Floyd to promote herself as sympathetic to protests against racism and inequality despite her behaviour during the broadcast; and

(g)    she is a racist.

6    The respondent’s defence denies that any of the pleaded imputations were conveyed, and further and in the alternative raises defences of justification by way of substantial truth (s 25), contextual truth (s 26) and honest opinion (s 31). The applicant pleads s 31(4) in reply to the defence of honest opinion, namely that any opinion conveyed was not honestly held by the respondent and that the respondent did not believe that any such opinion was honestly held by the person who had conveyed it as a commentator.

Applicant’s disputed interrogatories of the respondent

7    It is sufficient to identify and generally describe the particular interrogatories sought by the applicant and opposed by the respondent. The proposed interrogatories in dispute are 5, 6, 7(b) and (c), 8, 9, 10(b) and (c), 11, and 12(a) to (c). It should be noted that the respondent is prepared to answer proposed interrogatory 8 in a limited way, directed to information supplied orally by commentators reported upon, to mirror the same information being sought in a documentary form by discovery. In light of the respondent’s intention not to call any witnesses at the trial, each of these disputed interrogatories are directed to the defeasance of the defence of honest opinion in accordance with s 31(4) as pleaded in the applicant’s reply.

8    The asserted relevance of the information sought by the applicant by interrogatories 5 and 6 is to ascertain whether the respondent had any information to support the allegations in the first and third matters complained of, namely that the applicant had claimed that what she had said in the radio broadcast was an “in-joke”, that she had refused to apologise, and that she was unable to pronounce Polynesian names. If the defence of honest opinion can otherwise be established, in order to defeat that defence the applicant will need to prove that the respondent did not believe that such an opinion was honestly held by the employee or agent at the time of the publication and, in this case, that the respondent did not have reasonable grounds to believe the opinion was honestly held by the commentator whose views were published.

9    The applicant is endeavouring to ascertain that there was no information possessed by the respondent to permit the belief to be honestly held in the first place. In that event, her argument at trial would be that the logical foundation for the defence cannot exist. She argues that she does not seek this information in a wholly speculative way, because she did not ever claim that what she said or did was an in-joke between commentators, as reported, as opposed to being a reference to something that had been said in the earlier radio broadcast; did not ever refuse to apologise; and was not unable to pronounce Polynesian names. She therefore wishes to test the proposition that, where these foundations for the asserted beliefs do not exist, as she has pleaded, there are no other foundations for such beliefs, especially in circumstances in which the respondent does not propose to adduce any evidence.

10    The applicant further points out the relatively limited scope of what is sought by the interrogatories. She does not seek to interrogate beyond the fact of the information being possessed, and does not take the further step of seeking information about inquiries or other investigations as was a historic feature of this class of interrogatories.

11    The asserted relevance of the information sought by the applicant by these interrogatories is to ascertain any basis upon which the respondent believed certain commentators honestly held the opinions that were reported upon.

12    These interrogatories are not disputed in their entirety. There is no objection to the question in the chapeau to interrogatories 7 and 10 about whether the respondent believed that the commentators reported upon honestly held the opinions expressed, respectively, in the first and third matters complained of. There is also no objection to the questions of who at the respondent held that belief, nor to the negative questions raised by s 31(4)(a) and (b) as to whether the opinion was not honestly held by the respondent, or the respondent did not believe that the opinion was honestly held by an employee or agent, at the time the matter was published. Nor is there any objection to interrogating as to oral expressions of opinion conveyed by other commentators referred to, as sought by 8.

13    The nub of the objection for interrogatories 7(b) and (c), and 10 (b) and (c) (and to like effect with 9(b) and (c), and with 12(b) and (c), in relation to the commentators identified at 8 and 11 respectively) is that they take the additional step of ascertaining what the information possessed was, which particular imputations were the subject of the belief, the factual foundation for the beliefs and which particular persons at the respondent held those beliefs. The applicant conversely submits that those additional questions are legitimately designed to test the answers given to the interrogatories which are not objected to.

14    The respondent submits that none of the disputed interrogatories are necessary. On the contrary, they are described as being excessive, repetitive and not sufficiently directed to the defeasance in s 31(4). In particular, the respondent submits, and the applicant responds, as follows.

15    The respondent submits that the interrogatories are not sufficiently directed to the defence at hand, citing Voelte v Australian Broadcasting Corporation (No 3) [2015] NSWSC 1083 at [8]-[14]. In support, the respondent argues that interrogatories 7(c), 9(c), 10(c) and 12(c) are directed to whether it held an affirmative belief as to whether the journalists and commentators held an opinion consistent with the imputations, which is not a relevant issue, because s 31(4) is concerned with the matter complained of, not the imputations drawn from it, as is implicitly recognised by interrogatories 7(d), 9(d), 10(d) and 12(d).

16    In response, the applicant argues that while the defence of honest opinion relates to the matter complained of and not the imputations, those imputations remain relevant to the issues raised by the defence of honest opinion and sought to be met by the defeasance reply pleaded. The applicant relies upon the relevance of imputations to the question of whether opinion was conveyed by the matter complained of, as recognised by Lee J in Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 at [130]-[131]. His Honour observed that the pleaded meanings are relevant to, but not determinative of, the question of whether the matter complained of would have been understood by an ordinary reader to be an expression of opinion rather than a statement of fact. I draw from this that the pleaded imputations may, in a given case, illuminate the aspect of the matter complained of that is said to be defensible by the way of an expression of honest opinion. There is work of this kind to do for the first matter complained of in this case, because the pleaded imputations serve to identify the aspects of that matter that are pertinent to the opinion said to have been honestly expressed.

17    The respondent further argues that the interrogatories are too broad and repetitive. In support, the respondent argues that interrogatories 5, 6, 7(b), 9(b), 10(b), and 12(b) are all directed to ascertaining the information possessed by the respondent prior to publication, being relevant to a defence under s 30, with interrogatory 5 being a longstanding and much used exemplar. However, the respondent argues, the issue for defeasance of the honest opinion defence under s 31(4) is narrower. While information supplied to the journalist by commentators (implicitly going beyond the comment made at the time and reported upon) is of potential relevance, citing Voelte at [14], this is caught by the discovery categories insofar as this information is in documentary form. By way of compromise, so far as it is in oral form the respondent will consent to an interrogatory to that effect. However, the respondent objects to what it submits are broad interrogatories, characterising them in substance as requiring the discovery process to be repeated in oral rather than documentary format, and to deal with information that is irrelevant to the pleaded defence of honest opinion, and thus to its defeasance.

18    I am persuaded to accept and prefer the respondent’s submissions on this topic. With the compromise proposed by the respondent of consenting to an interrogatory which has the effect of replicating the discovery categories agreed insofar as information was provided either only or additionally in oral form, I am not satisfied that the disputed interrogatories are necessary, provided that the concession extends to providing particulars of the person to whom the oral communication was made, and if not provided directly to an employee or agent of the respondent, the identity of any person or persons who facilitated that ultimate communication.

19    It follows that, beyond the respondent’s concession, the applicant has not satisfied me that the disputed interrogatories are necessary in order to tease out, ahead of trial, and in aid of its efficient dispatch, whether there was any information possessed to ground the honest opinion asserted to exist.

Respondent’s disputed categories of discovery of the applicant

20    The applicant objects to categories 4 and 5 of the discovery sought by the respondent. As refined during the course of legal argument, those categories seek “all documents recording, referring to and/or evidencing communications between the applicant (including any agent) and ‘Nine’ (defined as Nine Entertainment Co Holdings Limited, including its related entities and subsidiaries, such as Nine Radio and Radio Station 2GB, and employees or agents of those entities)”:

(a)    regarding the matters complained of, including but not limited to the matters referred to in paragraphs 53, 61, 64, 69(a), 71 and 92 of the applicant’s outline of evidence (extracted from that outline and annexed to the affidavit of Mr Paul Svilans before me); and

(b)    regarding the broadcast on 5 June 2020 of the matter that the applicant has referred to as an apology, including but not limited to the matters referred to in paragraphs 72 to 76 of the applicant’s outline of evidence (also extracted from that outline in the evidence and annexed to Mr Svilans’ affidavit).

21    The respondent’s rationale for seeking this discovery is to obtain communications between the applicant and her employer regarding the matters complained of, and regarding the apology that she asserts was given by what she said on 5 June 2020 (contrary to the imputation that she had refused to apologise). The respondent contends that the applicant has been selective about the oral communications she has chosen to disclose about both sets of communications, and that it should not have to, in effect, let that editorial decision dictate either the form or the breadth of what is disclosed about those topics of communication.

22    The applicant does not take issue with documentary disclosure corresponding to the oral disclosures that she has chosen to rely upon, but contends that going beyond that is too broad and uncertain, especially when regard is had to the very wide breadth of persons caught by the definition of “Nine”. She contends that because of that breadth, the respondent has failed to identify the relevance of the further material sought. In that regard she points to the asserted substantial truth of the imputation that she refused to apologise. This is pleaded in a way that is limited to the applicant not responding to a message from one of the respondent’s journalists, Ms Zoe Zaczek, asking whether she was going to comment on allegations of racism, or apologise, and the terms of particular broadcasts and communications detailed at pp 55-56 of the defence (at paragraphs 4-8).

23    The substance of the dispute, apart from the breadth of the definition of “Nine” travelling well beyond direct or indirect communications between the applicant and her employer, is that the applicant seeks to confine the discovery to the specified information referred to, and thus objects to the broadening encompassed by the words “including but not limited to”. I note that the applicant has already agreed to discover the document referred to in [75] of her outline.

24    The respondent contends that while the applicant’s outline refers to a number of communications between the applicant and her employer concerning both the matter complained of and her broadcast on 5 June 2020, the additional documents sought are confined to a topic that is not suggested to be other than relevant; the documents are unlikely to be voluminous or costly to isolate and discover; and, most importantly, the applicant has elected to put a sample of these documents in issue as annexures to her outline. The respondent submits that it should not be confined to the material on these topics that the applicant has chosen to rely upon.

25    I am satisfied that upon the applicant having opened up these communications, the respondent is entitled to test the completeness of the communications selected to advance this aspect of her case, but only to do so by reference to direct or indirect communications between the applicant and her employer, and not the wide range of other potential communications sought by reason of the breadth of the definition of “Nine”. The discovery should therefore not be as limited as the applicant contends, nor as broad as the respondent seeks.

26    The two disputed categories of discovery by the applicant are therefore allowed (as adjusted to remove the words “the subject matter of” from category 4) without the limitation sought by the applicant, but limited to documents relating to direct or indirect written communications between the applicant and her employer regarding the matters complained of and regarding the asserted apology broadcast on 5 June 2020, including those documents referred to in the identified paragraphs of the applicant’s outline.

27    The parties should be capable of reaching agreement on wording for these two disputed discovery categories, but if not, competing versions can be furnished to my chambers by email and adjudicated on their face in chambers without the need for any further submissions or hearing.

Respondent’s disputed interrogatories of the applicant

28    The respondent’s defence of justification includes comments made by Mr Paul Vautin on The Footy Show television program broadcast in 2017. The substance of the material that the respondent relies upon is the applicant laughing at what Mr Vautin had said about the consumption of alcohol by an Indigenous contestant who had won a sum of money, which is asserted to be racist. This is turn is said to provide contextual truth for the imputation that the applicant is a racist.

29    The disputed interrogatories seek to have the applicant listen to the broadcast and answer questions about what belief she formed as to the contestant’s racial background and whether she had spoken to certain identified persons or categories of persons about Mr Vautin’s comment, and if so when this took place, who the other person was and what in substance was said. The applicant submits that she is going to be giving evidence and can be cross-examined about this and that the interrogatory is therefore unnecessary. She cites the refusal of White J to allow an interrogatory in a supposedly like circumstance in Hanson-Young v Leyonhjelm (No 2) [2019] FCA 393 at [21] in support of this submission. I do not find that conclusion of his Honour to be of much assistance to the markedly different circumstances in this case, as the proposed interrogatory in that case was inherently offensive and improper. However, there still needs to be a good reason to replicate what might otherwise take place in the course of oral evidence at the trial, including in particular during cross-examination. Interrogatories need to be more than a dry run of questions to be asked in cross-examination, or the mere setting up of such questions. The broad umbrella of legitimate trial preparation has its limitations.

30    The respondent contends that the disputed interrogatories are targeted and specific, that it would be the work of minutes to answer them, that they are closely tied to the particulars relied upon by the respondent, and that they are necessary because the applicant’s personal observations and beliefs and any conversations that may have followed the incident are unlikely to be recorded in a document. In relation to the proposition that the applicant is going to be giving evidence and accordingly that these disputed interrogatories are unnecessary, the respondent submits that the questions may affect the progress of this aspect of the trial by allowing it to ascertain whether or not the applicant perceived the contestant to be Indigenous, and by identifying her communications with those involved in The Footy Show, its producers, and the Nine Network, about Mr Vautin’s comment to the contestant. This includes when, with whom, and what was said.

31    In response, the applicant submits that the first question as to her perceptions of the racial identity of the contestant can be addressed by a notice to admit. While that is certainly an option, it seems to be waste of time and a duplication of effort to exclude an interrogatory upon that basis alone. It is also a tacit admission that the question is relevant without conceding it is necessary. However, the key question of necessity must still be established by the respondent.

32    The stronger basis for opposition to the interrogatory questions about what was said by the applicant later is the possibility of treating the reaction to what was said as an opening to explore speculative possibilities as to what else might have been said by the applicant, presumably at the time. This might improve the respondent’s case in this regard, based as it is now only upon her laughing at a time proximate to Mr Vautin making the comment to the competitor. Viewed in this way, this second aspect of the proposed interrogation is evidently designed not for the narrowing or focusing of the case, but to open it up further. I do not accept that this sort of fishing is an appropriate, let alone necessary, use of interrogatories. This especially so when the party sought to be interrogated has indicated that they are going to give evidence and will therefore be available for cross-examination.

33    The conclusion I have reached is that reasons advanced in support of these disputed interrogatories do not show that they are necessary, and further they may inappropriately allow the respondent to expand its case. Questions directed to obtaining the same information can be asked in cross-examination. The applicant is squarely on notice of this topic and will be able to answer questions directed to the substance of the information sought, including answering any call as on subpoena under s 36 of the Evidence Act 1995 (Cth): see Chapman v Luminis Pty Ltd [2000] FCA 1120; 104 FCR 368 at [17]-[19], and the Full Court decision there cited and quoted of Morey v Transurban City Link Limited [1997] ATPR 41-571, especially at 43,932.

Conclusion

34    With the qualifications identified in these reasons:

(a)    the applicant’s disputed interrogation of the respondent should not be allowed (taking into account the respondent’s concession as elaborated upon in these reasons);

(b)    the applicant’s disputed discovery sought of the respondent should be allowed, subject to the variations identified in these reasons; and

(c)    the respondent’s disputed interrogation of the applicant should not be allowed.

35    As each party has had a measure of success in this interlocutory dispute going beyond the bare result in the orders made, the costs of and incidental to this dispute should be costs in the cause.

Associate:

Dated:    8 April 2021