DISTRICT COURT OF QUEENSLAND

1. [1]
   In this matter there are two applications for leave to deliver interrogatories under UCPR r 229.  The first application is for leave to deliver interrogatories to the defendant, and the second is for leave to deliver interrogatories to a proposed additional defendant, or a proposed defendant to a proposed proceeding.  Although under r 230(1)(a) the applications are permitted to be made ex parte, each was in fact brought to the attention of the respective respondent before the hearing.  Neither appeared at the hearing.  It is appropriate to consider them separately.

Interrogation of defendant

2. [2]
   The plaintiff’s claim is for damages for defamation in respect of a document identified as a letter to shareholders. Initially there were two defendants, but a notice of discontinuance of the proceeding against the second defendant was filed on 12 August 2008.  No notice of intention to defend has ever been filed on behalf of the remaining defendant, and on 8 August 2008 default judgment was signed by a deputy registrar for him to pay damages to be assessed on the plaintiff’s statement of claim.  Those damages are yet to be assessed.  Originally leave was sought to deliver nine interrogatories to the defendant, but in the course of the hearing of the application the solicitor for the plaintiff abandoned the application except insofar as it related to Interrogatory No. 8.

3. [3]
   Most of the other interrogatories were directed to the question of whether the defamatory material the subject of the proceeding had been published other than as alleged in the statement of claim. The only matter that remains in issue is the question of damages, under the judgment damages are to be assessed on the plaintiff’s statement of claim, and the statement of claim seeks damages against the defendant in respect of publication to a list of recipients identified in it, so whether the defamation was also published to anyone else is irrelevant.^[1]

4. [4]
   The proposed interrogatories then proceeded to identify two emails, one from the defendant to the former second defendant, and one from the former second defendant to the defendant, both dated the same day. The interrogatory which is pressed seeks confirmation that the person referred to in the defendant’s email as “Luke” was the plaintiff, and asks the defendant what was meant by certain words in that email. The final interrogatory sought information about what the former second defendant meant by some of the things he wrote in his email in reply, but obviously the defendant cannot be asked what someone else meant when that other person used particular words in a document the other person composed.

5. [5]
   The rule permits interrogatories to be delivered (with leave) at any time, and so presumably authorises their delivery after default judgment has been signed. Given the confining of the issues as a result of the signing of the judgment, however, it is necessary to approach the question of whether the interrogatories are directed to something relevant with some care. The issue about proving the matter the subject of this interrogatory by some other means is not an obstacle to the interrogatory; only the defendant knows what he meant by the words in question.

6. [6]
   The remaining interrogatory is directed to something said by the defendant in an email he sent to the former second defendant, some time after the publication by the defendant of the letter which is the subject of the action. It was submitted on behalf of the plaintiff that the interrogatory went to eliciting information about whether or not the publication was motivated by ill will or an improper motive, and if the latter which motive, and hence was relevant to the question of whether aggravated damages should be awarded. An interrogatory relevant to the assessment of damages is relevant to a matter which remains in issue in the action notwithstanding the default judgment. Aggravated damages are sought in the statement of claim (paragraph 25), and such damages may be awarded if the circumstances of the publication had the effect of aggravating the injury done to the plaintiff,^[2] if the publication was spiteful^[3] or malicious^[4] or grossly negligent.^[5]  Such damages may also be awarded for conduct of the defendant after publication if it is lacking in bona fides, improper, or unjustifiable:  Triggell v Pheeney (1951) 82 CLR 497 at 514.

7. [7]
   It has been held that it is permissible to interrogate a defendant as to whether the words the subject of the action were intended by the defendant to refer to the plaintiff, on the basis that this is relevant to the issue of damages including aggravated or exemplary damages: Norton v Hoare (No. 2) (1913) 17 CLR 348 at 352; Erwin v Southdown Press [1976] VR 353 at 355.^[6]  There is also authority for the proposition the defendant in an action for libel may be interrogated about whether he published things other than the subject matter of the action of and concerning the plaintiff:  Storer v Smiths Newspapers Ltd [1939] VLR 347 at 351.^[7]  These authorities suggest it is legitimate to interrogate a defendant in relation to the meaning of an expression used by the defendant in another document with a view to showing that that document is evidence of ill will or an improper motive in the publication of the material the subject of the action.

8. [8]
   There is, however, one obstacle to the plaintiff’s argument that the interrogatory is relevant to the assessment of damages, because it is relevant to the existence of ill will or an improper motive in the publication of the material the subject of the action. That arises because the defamatory material was published on 4 July 2007, so that the action is covered by the Defamation Act 2005.  Section 36 of that Act provides:

“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.”

9. [9]
   Section 36 is similar to, and presumably based on, s 46(3)(b) of the Defamation Act 1974 of New South Wales.  The operation of that provision was explained by the New South Wales Court of Appeal in Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 805, where the court said:

“A state of mind, including a malicious mind, if not manifested, can rarely if ever increase the hurt to a defamed plaintiff. … It follows that it is for a plaintiff who seeks to recover compensatory damages and to include a component for particular personal hurt and affront arising from some state of mind on the part of the publisher, to point to evidence tending to show that it caused some harm suffered by the person defamed over and above what might ordinarily be expected to follow.”

10. [10]
    In Andrews v John Fairfax and Sons Ltd [1980] 2 NSWLR 225, Hutley JA cited Morosi at p 240 and said, of s 46(3):  “What it appears to do is to confine the plaintiff’s damages to proof by him of harm actually suffered by him.”  Glass JA at p 250 said:

“I am unable to find any warrant in the authorities for the suggestion that the plaintiff was disentitled to an enhanced award, unless he proved that the aggravating behaviour of the defendant had augmented his sense of hurt.  This could be presumed.  If this be part of the relevant harm at common law, I see nothing in the statute which would alter that position.  There are doubtless good reasons for holding that a state of mind on the part of the defendant of which the plaintiff may have been unaware should not be treated as increasing the plaintiff’s relevant harm in the absence of evidence of the kind mentioned.  But I see no reason why this should, in point of evidence, apply to externally verifiable conduct the effect of which on the plaintiff can be inferred by the jury without precise evidence, as it could have been done at common law.”

11. [11]
    Accordingly, it cannot be relevant to the assessment of aggravated damages simply to prove that the defendant was in fact actuated by ill will or improper motive in the publication of the defamatory material. It is not the state of mind of the defendant in the abstract which is relevant to the assessment of damages; it is only the impact on the plaintiff of the defendant’s state of mind which can be taken into account. What matters is not ill-will or improper motive per se, but the effect on the plaintiff of the manifestation of that state of mind, and that depends on proof of that which is relied on as manifesting that state of mind.  It is the externally verifiable conduct rather than the actual state of mind of the defendant that must be proved.

12. [12]
    Obviously the plaintiff is aware of the contents of the email the subject of the interrogatory, and to the extent that that email has in turn had some effect on the plaintiff, then it may be relevant to the assessment of damages; but if there is actual malice of which the plaintiff is currently unaware, the demonstration of that as a result of the response to the interrogatory would be something which could be taken into account pursuant to s 36 only if the harm sustained by the plaintiff was aggravated in some way as a result of the disclosure of that information.  I do not think it is a proper purpose for interrogatories to seek to enlarge the plaintiff’s damages, by causing him to suffer more harm.

13. [13]
    It could be argued that if there was in fact ill will or improper motive on the part of the defendant towards the plaintiff, and the plaintiff has been hurt by an assumption of the existence of such a thing, proving that the plaintiff’s assumption was true by demonstrating the existence of actual ill will or improper motive is relevant to satisfy the requirement of s 36 of the Act.  But I do not consider that s 36, insofar as it requires the malice or other state of mind of the defendant to affect the harm sustained by the plaintiff, would be satisfied simply by evidence that the harm sustained by the plaintiff was increased by an assumption on the part of the plaintiff of the existence of malice or some other state of mind on the part of the defendant, even if that assumption turns out to be correct.  In those circumstances the harm would have been done by the assumption of the plaintiff, not any actual malice or other state of mind on the part of the defendant.  There is also the consideration that, if s 36 could be satisfied by this two-stage procedure, involving in effect a justification of the plaintiff’s assumption, it would seem to me to deprive the section of any substantial use or purpose.

14. [14]
    I should add that I have looked at the Explanatory Note for the bill which became the Act,^[8] but it is characteristically unhelpful.  All it says is:

“Clause 36 provides that a court, in awarding damages, is generally to disregard the malice or other state of mind of the defendant at the time the matter to which the proceedings relate was published.”

I suppose at least this does provide some support for the proposition that the legislature did intend that the section would make some difference, that is, would not be easily evaded.

15. [15]
    It was argued for the plaintiff that paragraph 13 of the statement of claim alleged that the defendant’s publication was actuated by ill-will to the plaintiff or some improper motive of which the plaintiff is unaware, and that the plaintiff was entitled to interrogate to ascertain what the improper motive was, since the damages are to be assessed on the basis of the facts alleged in the statement of claim, including paragraph 13.  In my opinion, it follows from the analysis in Andrews (supra) that the identification of the particular motive is irrelevant to the assessment of damages; what matters is how this was externally manifested by the defendant, and what effect that had on the plaintiff, matters the plaintiff can prove if they occurred.  Assuming that damages are to be assessed on the basis that paragraph 13 is true, it is unnecessary to prove the actual state of mind of the defendant, and, if the result of the (unknown) improper motive was to increase the harm to the plaintiff, because of the way it was manifested, aggravated damages can be awarded.  The plaintiff still has to prove that further matter, and the answer to this interrogatory would not assist in that.  This is really a further reason why the interrogatory is unnecessary.

16. [16]
    But for s 36 I would have regarded the proposed interrogatory as relevant to what remains of the action, and in those circumstances it would have been reasonable to give leave to the plaintiff to deliver the interrogatory.  The interrogatory is not oppressive, and does not raise matters which could be conveniently dealt with in some other way.  The matter is one of discretion, and there are no general rules about how the discretion should be exercised:  Cross v Queensland Rugby Football Union Ltd [2001] QSC 173 at [17].  But in view of s 36, I do not consider that a favourable answer would be relevant to the assessment of damages, for the reasons given, so there is no point to the interrogatory.

17. [17]
    One other matter which did concern me a little is whether there is any point in giving leave to deliver an interrogatory in circumstances where the defendant has not taken any steps to defend the action, and where the matter remaining in issue is only as to assessment of damages. I note, however, that the defendant has had a lawyer advising him to some extent in relation to this matter, although that lawyer has not ever filed an address for service or other document. The defendant would be entitled to take part in the assessment of damages, and may well be intending to do so. On the whole I do not think I should assume that it is likely to be a waste of time my giving leave to deliver the interrogatory.

18. [18]
    In all the circumstances therefore I will not give leave to the plaintiff to deliver Interrogatory No. 8.  Consistently with the approach adopted by the solicitor for the plaintiff at the hearing, leave to deliver the balance of the interrogatories is also refused.  The first application is therefore dismissed.  Had I been giving leave, I note that Interrogatory No. 7 is in substance an introduction to Interrogatories 8 and 9, and the substance of Interrogatory No. 7 should be incorporated into Interrogatory No. 8 so that it was delivered in that form.

Second application

19. [19]
    The plaintiff also seeks leave to deliver interrogatories to the defendant’s wife, with a view to determining whether she republished the defamatory material which, according to the statement of claim, was published inter alia to her by the defendant.  The purpose of the interrogatories is said to be to determine whether the plaintiff should proceed against her for damages in respect of that republication.  The purpose of interrogatories under this part of the rule is to decide whether a person would be an appropriate party to an existing or proposed proceeding.  There is a useful discussion of the background to the rule in the judgment of Douglas J in Pacific Century Production Pty Ltd v Netafim Australia Pty Ltd [2004] QSC 63, where his Honour noted that there did not appear to be any other decision on the rule in Queensland:  [4].  I have not found any subsequent decision on the rule.

20. [20]
    That matter was not an action for defamation but an action for breach of contract, where one of the defendants alleged that a particular person who was then employed by a company related to the plaintiff had done certain things. That person no longer worked for that related company, and there were proceedings between him and his former employer in the Magistrates Court, and other proceedings against him in the Supreme Court. He would not speak to the plaintiff or its solicitors about the action in which the application was made, and the plaintiff wanted to interrogate him about various matters, with a view to the possibility of joining as parties to the existing action two representatives of the existing first defendant. There was evidence that this former employee was the only one who was familiar with what passed between the plaintiff and the defendant in relation to the transaction the subject of the action. In that matter his Honour decided that the circumstances were such that he should exercise his discretion to give leave to deliver the interrogatories.

Equitable discovery before action

21. [21]
    It seems fairly clear that the plaintiff in the present case would not have been able to come within the traditional scope of discovery before action in equity. It was necessary in respect of those actions for the plaintiff to show that he had a cause of action against the person whose identity was sought to be disclosed in this way, with a view to pursuing an action against that person.^[9]  This was discussed in the leading modern authority on that action, Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133.  Lord Reid referred at p 173 to the argument that it was an indispensable condition for ordering discovery that the person seeking discovery should have a cause of action against the person from whom it was sought, otherwise the matter would come within what he described as the mere witness rule, and said at p 174 that:

“Discovery to find the identity of a wrongdoer is available against anyone against whom the plaintiff has a cause of action in relation to the same wrong.  It is not available against a person who has no other connection with the wrong than that he was a spectator or has some document related to it in his possession.  But the respondents are in an intermediate position.  Their conduct was entirely innocent; it was in execution of their statutory duty.  But without certain action on their part the infringements could not have been committed.”

22. [22]
    That was a case where the plaintiff was able to show that its patent was being infringed, but did not know the identity of the wrongdoers who had infringed it, so as to take action against them. It was held that because the Commissioners had by their action involved themselves, albeit innocently, in that wrongdoing, they were amenable to discovery before suit to find out the identity of the wrongdoers. There is, however, nothing in that case to suggest that discovery before action would be available at equity in circumstances where the plaintiff could not show that there had been a wrong committed.

23. [23]
    There is the further limitation, that the old relief in equity was not available in circumstances where the only cause of action sought to be relied on was in tort, which is what defamation is: Cummings v 2KY Broadcasters Pty Ltd [1981] 1 NSWLR 246 at 249 per Hunt J.^[10]  In the same decision, his Honour at p 247 said that in order to obtain an order for discovery to enable the plaintiff properly to frame a statement of claim the plaintiff must identify with some precision the purport of the defamation upon which he intends to rely, adding at p 248 that the plaintiff is not permitted to conduct a fishing expedition.

24. [24]
    Prior to the commencement of the Uniform Civil Procedure Rules, when there was no specific provision in the Queensland rules for preliminary discovery, an order was made on the basis of the traditional equitable jurisdiction in Re: Pyne [1997] 1 Qd R 326.  In that matter, the applicant alleged that he had been defamed in an anonymous circular which had been distributed to the general public in Cairns.  He knew of the circular which was put before the court, and it appeared that Shepherdson J proceeded on the basis that he had been defamed and the only question was the identity of the person responsible.  His Honour applied Norwich Pharmacol Co (supra), and found that it was appropriate to make an order against the respondent on the basis that he was a person who was mixed up in the tortious acts of the person or persons who prepared and published the defamatory matter, so as to bring the case within what was said in Norwich Pharmacol.

25. [25]
    His Honour also cited part of the passage from John Fairfax and Sons Ltd v Cojuangco (1988) 165 CLR 346 at 357 quoted below, and appears to have applied the test set out there on the basis that it was necessary to make the order to provide the applicant with an effective remedy in respect of the actionable wrong of which he complained.  In Pyne, of course, there was no doubt that the plaintiff had been defamed by somebody, the only question was whether he was entitled to an order against the respondent with a view to ascertaining the identity of the person or persons concerned.  His Honour’s finding brought the matter within the established authorities, though I have some doubt about his reasoning.  It appears from his Honour’s reasons at p 331 that the respondent was treated as more than a “mere witness” because he had refused to swear an affidavit verifying statements already made in a letter from a solicitor to the effect that he knew nothing about the matter.  With respect, it is not apparent to me that that was the sort of situation discussed by Lord Reid, but for present purposes the case does not stand as authority for the use of preliminary discovery in a defamation action where the applicant does not know whether a defamatory publication received by the respondent was passed on by the respondent.  There was also no mention of the decision in Cummings or the earlier authorities cited there about whether the equitable remedy was available where the only cause of action sought to be relied on was in tort, and in those circumstances the decision does not stand as authority to contradict the decision of Hunt J in that matter on this point.^[11]

Incrimination

26. [26]
    Another matter which I have considered is whether the defendant’s wife would be entitled to refuse to answer any such interrogatories, on the grounds that the answer might tend to incriminate her. At least in certain circumstances, the publication of matter defamatory of another living person is a criminal offence, a misdemeanour, under s 365 of the Criminal Code.^[12]  It is necessary to show additional matters in relation to the publication of defamatory matter for that to amount to a criminal offence, but they are concerned with the state of mind of the offender at the time of the offence, and I do not know whether if the respondent did admit to republication of the defamation, the further requirements would have been satisfied in her case in respect of that republication.  Presumably she would know that.

27. [27]
    The privilege against self-incrimination applies, as one would expect given the importance of that privilege, to answers to interrogatories, and applies regardless of the likelihood of a prosecution being instituted in a particular case: Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd [1939] 2 KB 395.  The privilege against incrimination has been described as a human right required by a fair balance between the interests of the state and the interests of the individual:  Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 508 per Mason CJ and Toohey J.  In these circumstances, it should not be overridden merely because prosecution in a particular case is unlikely, or for that matter because under s 365(7) of the code, a prosecution requires the consent of the Director of Public Prosecutions.^[13]

28. [28]
    It seems to me, however, that this is a consideration which arises only if the respondent refuses to answer the interrogatories on the ground that the answers might incriminate her. Given the terms of s 365 of the Code, it by no means necessarily follows that any republication by the respondent would amount to a criminal offence.  In those circumstances, I consider that this is a matter which should be left to the respondent to take the point by way of objection to answering:  r 232(2).  The rules do not operate on the basis that a person against whom leave to deliver interrogatories has been granted is prevented from objecting to answering the interrogatories.

Other States – Fishing

29. [29]
    In Pacific Century Production v Netafim (supra) his Honour said that the ordinary reluctance of the court to allow interrogatories which were fishing in nature was not as appropriate given the basic purpose of interrogatories of this nature: [15].   Ordinarily it would be impermissible to ask whether someone had published a defamation, on the ground that that was fishing:  Braham v Huntingfield [1931] 2 KB 193.^[14]  His Honour expressly held that the interrogatories could be delivered with a view to deciding whether the person interrogated should be sued:  [19].  His Honour did not, however, say that those considerations were irrelevant.

30. [30]
    There are some similarities between the provision for interrogatories prior to action in r 229 and preliminary discovery under the rules in other states, and in the Federal Court.  The Federal Court Rules contain in O 15A two rules for pre‑litigation discovery:  Rule 3, which is concerned with the identification of the person to be sued,^[15] and rule 6, which is concerned with obtaining relevant information from a person who may be sued.^[16]  The latter rule is expressly dependent on there being reasonable cause to believe that the applicant has or may have a right to obtain some relief.  The former is not, but it has been said of it at appellate level that the prospects of success in the contemplated proceedings are a relevant factor:  Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at 11, where it was said:  “The power conferred by O 15A r 3 is not to be used in favour of a person who intends to commence merely speculative proceedings.”

31. [31]
    In Pacific Century Production v Netafim (supra) his  Honour referred to three decisions on such rules on the question of whether fishing was permissible.^[17]  First, Smith Kline Beecham Pty Ltd v Alphapharm Pty Ltd [2001] FCA 271 at [19], which contemplated that on an application under O 15A r 6 of the Federal Court Rules some fishing was necessarily involved, but that the rule was expressly predicated on the existence of reasonable cause to believe that the applicant has or may have a right to relief.  Second, Airservices Australia v Transfield Pty Ltd (1999) 92 FCR 200 at [5], which arose under both rules of the Federal Court, and said that the rules prescribed significant limiting conditions to be satisfied before an applicant was allowed to “fish”, and that it did not “mandate mere rummaging through another’s affairs”.^[18]

32. [32]
    The third, Clarkson v DPP [1990] VR 745 at 758, was a case involving a question of discovery in criminal proceedings.  The Court of Appeal in the course of its judgment discussed various civil rules in relation to discovery, including preliminary discovery, but ultimately decided that those rules were not applicable in criminal proceedings, and that in relation to criminal proceedings no order for discovery was made.  The comment was made, I think obiter, that had the matter been a civil proceeding an order for discovery could have been made.  It was said then that r 32.03 “appears to me to be designed to enable ‘fishing’ to be engaged in in certain circumstances as set out in the rule.”  The point was not enlarged on.

33. [33]
    Under the New South Wales rules dealing with preliminary discovery, it was at one time necessary to show a prima facie case against the person from whom discovery was sought, but that requirement was subsequently removed by amendment.^[19]  After that amendment a Master of the New South Wales Supreme Court said^[20] in relation to the rules:

“Preliminary discovery is a valuable aid to justice.  But its objective would be perverted if it were to be permitted to be turned into an instrument of oppression.  In my opinion it would be turned into an instrument of oppression if it became a procedure in aid of speculative claims.  It is one thing to require the name of a wrongdoer to be disclosed to the person wronged.  It is a very different thing to require his name to be disclosed so that someone supposing himself to have a grievance against him may commence merely speculative proceedings against him.  This does not mean that an applicant for preliminary discovery will never be granted that relief unless he establishes that he has a prima facie case against the person whose name he wishes to ascertain.  The evidence, although falling short of establishing all of the ingredients of a prima facie case, may point sufficiently to the existence of a case for relief as to make it proper, in the interests of justice, that preliminary discovery be ordered so that proceedings for that relief can be brought.  Each case must be considered on its own merits.”

34. [34]
    In Stewart v Miller [1979] 2 NSWLR 128, Sheppard J at p 140 expressed agreement with that passage, which he quoted.  Although that analysis was to some extent dependent on the terms of the New South Wales rule, the proposition that there must be some sufficient evidence of the existence of a case for relief to make it proper in the interests of justice that preliminary discovery be ordered seems to me to make a lot of sense as a general proposition.  In the light of this decision, it has been said that “The court still will not allow fishing expeditions, nor will it allow preliminary discovery for speculative proceedings.  There must be an intention to prosecute what the court regards as a reasonable cause of action. … The plaintiff … must still show the existence of a case for relief in terms strong enough to make it proper to order preliminary discovery.  A merely speculative cause of action is not sufficient.”^[21]

35. [35]
    A South Australian rule^[22] for discovery before action, where proceedings are “likely”, was considered by the Full Court in Gerard Industries Pty Ltd v Wee (1986) 43 SASR 562.  White J, with whom the other members of the court agreed, said at p 568:

“There must be some grounds for making the application; there must be some foundation for the belief that discovery is necessary; speculation and hope and unwarranted suspicion are not enough; and busybodies on fishing expeditions ought to be discouraged.  But … it is not necessary to show as a condition precedent to an order, that one has a good cause of action already, that is, without the benefit of the information which is sought by the discovery.”

The reference to “necessary” came from another applicable rule; UCPR rule 234 deals with unnecessary interrogatories in a general way.

36. [36]
    In Richardson Pacific Ltd v Fielding (1990) 26 FCR 188, Burchett J said of O 15A that the powers it conferred should be exercised with caution (p 190) and that “the real question is whether the circumstances are sufficiently special to justify the use of the Order, for in my opinion the order is intended, not for the general run of case, but for cases which do not have about them something outside of the ordinary.”  That decision has been followed in a number of Federal Court decisions.^[23]

37. [37]
    The approach in Stewart v Miller was cited with approval by Lindgren J in Levis v McDonald (1997) 75 FCR 36 at p 41, where his Honour said that the New South Wales authorities showed that the prospects of the applicant’s case for relief might be relevant to the exercise of the discretion.  After a consideration of the material facts at pp 44-45, he rejected the application on the basis that the existence of any right to relief against anyone else was “mere speculation”.  Such an approach was endorsed by the Full Court of the Federal Court in Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at 11.  Stewart v Miller and Levis v McDonald were cited.  It was also said at p 12 that it was not enough for the applicant merely to assert that there was a case against the prospective respondent.  This was admittedly said in the context of a Federal Court rule which was confined in terms to circumstances where there was reasonable cause to believe that an applicant had or may have a right to relief against an ascertained person, a rule said^[24] to be based on the Victorian rule 32.05.

38. [38]
    Apart from rule 32.05, there existed in the Victorian rule at the time a rule 32.03.^[25]  Unlike rule 32.05, this contained no requirement that the applicant show that there was reasonable cause to believe that the applicant has or may have a right to obtain relief in a court before an order will be made, but it has been said that that requirement is implicit in r 32.03 so that an order will be refused if the applicant has no more than a hunch, a suspicion, or a hope that there is a right to relief against an unidentified person:  McCracken v Stockdale (Victorian Supreme Court, Beach J, No. 1948/94, 27 March 1995, unreported, BC9507202, cited in Williams “Civil Procedure Victoria” at p 3918).  It is not at all clear that the Victorian Full Court in Clarkson (supra) was intending to express disagreement with this proposition, given what was said in that matter about the rule, and bearing in mind that there was no discussion of authorities, and the basis upon which that matter was finally resolved.

39. [39]
    In Minister for Health and Aged Care v Harrington Associates Ltd [1999] FCA 549, Sackville J said, in the context of the Federal Court Rule O 15A r 6, that it was not enough for the applicant to state that he or she believes that there is a case, and that reasonable cause for such a belief must be established on an objective test.  More recently, in Imperial Chemical Industries plc v Echo Tasmania Pty Ltd [2007] FCA 1731, Graham J said at [20], about an application under O 15A r 6:

“It is not sufficient to point to a mere possibility that an applicant may have a claim when that claim is completely dependent on as yet unknown facts.  Unsupported speculation will not sufficient … .  Mere assertion, conjecture or suspicion is insufficient … .  Reliance on suspicion or a hunch will not suffice.”^[26]

To some extent, this approach derives from the terms of the rule, but it, like the terms of that rule, are informed by broader notions of the appropriate limits for a power of this nature.

40. [40]
    In Monsanto Co v Syngenta Seeds Pty Ltd [2006] FCA 228, Finkelstein J, after referring to Hooper v Kirella (supra), said at [9] that “in most cases an applicant for identity discovery must show some prospects of success in its proposed action.  A defendant’s privacy should not be invaded unless there is good cause.”  In that case, however, it was said to be in the interests of justice to make an order although that test could not be meet, because “there is a reasonable basis for believing that ‘the applicant’s] patent may have been infringed” and “it seems clear enough that some company in the Syngenta Group is involved.”  Preliminary discovery was also described as an “invasive process” in Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2007] FCA 2065 at [39] by Tamberlin J.

41. [41]
    The application of the relevant rule in the 1970 Supreme Court Rules in New South Wales, which was similar to the Victorian rule considered in McCracken v Stockdale (supra), was considered in the context of an action for defamation in Re: Cojuangco (1986) 4 NSWLR 513, a decision of Hunt J.  Much of his Honour’s reasoning is concerned with the impact on the application of the “newspaper rule” in relation to disclosure by media defendants in defamation actions, which does not arise in the present case, because in that matter what was sought were details of individuals who had provided information to a newspaper which was the basis of an article critical of the applicant.  As well, there was evidence in that case that the information disclosure of which was sought had been provided to the newspaper staff or journalists in confidence.  That is not the situation in the present case.

42. [42]
    In that matter his Honour rejected the submission that the availability of an effective right of action against others was irrelevant to the application for preliminary discovery and at p 523 continued:

“That availability is certainly relevant, at least where the order for preliminary discovery which is sought will compel a respondent to disclose information given to him in confidence.  This will be so whether that information was given to the respondent in the course of his employment as a journalist with a newspaper or otherwise.  The availability of relief against some other person may or may not be such a bar to the exercise of the court’s discretion in favour of making an order for preliminary disclosure where no question of confidentiality arises; it is unnecessary for me to decide that issue in this case, although I make reference to it again later in this judgment.”

43. [43]
    At p 532 his Honour returned to the situation where the disclosure to the newspaper was not on a confidential basis and said:

“The existence of an effective right of action against the newspaper or against some other person would, it seems to me (as at present advised), be a sufficient answer to an application for preliminary discovery against a newspaper or a journalist employed by it even where the source of information was not a confidential one. … That such a right existing against someone else should be a sufficient answer to an application for preliminary discovery in a newspaper case flows, in my view, from the desirability of protecting a journalist’s informants from the consequences of an unnecessary disclosure of their identity – which has been shown to be one of the purposes of the newspaper rule.”

44. [44]
    Since the present case does not involve a newspaper, the issues discussed by his Honour in that matter are not directly involved.  It does occur to me, however, that the existence of a remedy against someone else would be a relevant consideration in relation to an application for pre‑action interrogatories in a defamation action, for another reason.  In proceedings under the Defamation Act 2005, the damages awarded are to be related to the harm sustained by the plaintiff:  s 34.  A significant feature in this matter is that the basis of the application is a desire to ascertain whether proceedings should be brought against the existing defendant’s wife for (in effect) republication of a defamation published by the defendant.  It is alleged in the existing statement of claim that one of the persons to whom the defamation was published was the defendant’s wife.

45. [45]
    In principle, the defendant may have been liable for any republication of the defamation. Each republication is a separate tort in itself, but in the context of an action against the originator of the defamatory statement, where harm has been suffered as a result of the republication of that defamatory statement, whether the damage suffered as a result of the initial publication includes that later harm depends on ordinary principles of the assessment of damages in tort, namely whether such harm was the natural and probable consequence of such a publication: Slipper v British Broadcasting Corporation [1991] 1 QB 283; Kilpatrick v Van Staveren [2002] QDC 293, [2003] QCA 303.

46. [46]
    In Anderson v Gregory [2008] QDC 135, where some defamatory emails were sent in a context where there was a contested election within an unincorporated association coming up and the defendant was a candidate for election, and where he had sent emails to persons hostile to him which could be seen as portraying him in a negative light, I held that, bearing in mind that the technology makes it very easy to forward an email, so that emails are by their nature likely to be forwarded and thus republished, the defendant was liable for the harm done by republication of emails which he had sent, on the basis that that republication was a natural and probable consequence of his publication of them.

47. [47]
    It is, however, unnecessary for me to consider in the present case whether any republication of the emails sent by the defendant to any of the recipients could have been taken into account when assessing damages against the defendant, because for reasons I have already outlined the statement of claim in the present matter was framed in terms which did not include a claim for damages for any republication. That would therefore not be a reason for refusing to allow interrogatories against the defendant’s wife. Had the damages to be assessed against the defendant compensated for any republication of the defamation by any of the recipients, including the defendant’s wife, and in that way provided the plaintiff with compensation appropriate to the harm suffered by him as a result of that republication, there would have been no uncompensated harm in respect of any such republication, and therefore nothing to be compensated for by any award of damages against any other defendant in respect of the same republication.^[27]

48. [48]
    I might add that the decision of Hunt J was appealed unsuccessfully to the New South Wales Court of Appeal – (1987) 8 NSWLR 145 – and a further appeal to the High Court of Australia was also dismissed:  John Fairfax and Sons Ltd v Cojuangco (1988) 165 CLR 346.  It may be noted, however, that the court in a joint judgment did say that the availability of a remedy against someone else in relation to the publication of the defamation was relevant to the question of whether preliminary discovery should be ordered, because it affected the question of whether it was necessary in the interests of justice for such an order to be made.  In a joint judgment of the court at p 357 their Honours said:

“To say that the policy considerations behind the newspaper rule are relevant in an application for preliminary discovery does not mean that an applicant will fail unless he makes out a case of special circumstances.  What an applicant must show is that the order sought is necessary in the interests of justice; in other words, the making of the order is necessary to provide him with an effective remedy in respect of the actionable wrong of which he complains.  Where an applicant complains of a defamatory publication in a newspaper a court will refuse an order for preliminary discovery if it appears that the applicant has an effective remedy against the newspaper or journalist without the necessity for making such an order.”

49. [49]
    It seems to me that the point of this is that the interests of justice are engaged by the necessity to obtain the assistance of the court in order to obtain redress for a demonstrable wrong; if the applicant already has an effective cause of action against someone else in respect of the actionable wrong, the interests of justice do not require the order to be made. In the same way, if it is not shown that the applicant has suffered an actionable wrong, or at least might well have done so, it is difficult to see how the interests of justice require such an order to be made.

Analysis

50. [50]
    In my opinion there is a good deal of sense in the approach approved in Stewart v Miller.  It is one thing to say that it is just and appropriate that a party who can show that he has been wronged but who requires some additional information before proceedings can be commenced to vindicate that wrong should be assisted by processes of law which require someone to provide information necessary to enable that proceeding to be commenced.  It is an entirely different matter for someone who does not even know whether he has been wronged or not to be requiring someone under compulsion of law to state whether or not that has occurred.  That runs contrary to the fundamental approach of the common law, that he who alleges must prove.^[28] Although the plaintiff has been wronged by the defendant, as established by the judgment, there is neither evidence nor a proper basis for inference that the respondent has wronged the plaintiff in any way.  In those circumstances, it seems to me that the use of the court process in this way can be seen to be oppressive.

51. [51]
    Ultimately, the issue under r 229 in circumstances of this nature is whether it is appropriate in the interests of justice to allow the interrogatories to be delivered.  The fact that leave is required shows that it was contemplated that there would be some good reason for allowing the interrogatories to be delivered before leave would be allowed.  Despite the fact that, as Douglas J pointed out, to some extent in circumstances where the purpose of the interrogatories is to ascertain whether the respondent would be an appropriate party to a proposed proceeding, the question of whether the interrogatories are “fishing” is not as fatal as it ordinarily is, I do not consider that (relevantly) the rule provides a prospective plaintiff with an untrammelled right to ask someone whether that person has defamed the prospective plaintiff, even if the prospective plaintiff is keen to sue the person if favourable answers are obtained.  Because damage is presumed in defamation,^[29] to ask someone “have you published defamatory matter about me?” is to seek an admission of the entire cause of action.^[30]

52. [52]
    In my view, at least in circumstances where the issue is one of damages for defamation, it is appropriate to confine the grant of leave to a situation where there is some good reason to think that the prospective plaintiff may well have a cause of action against the proposed defendant and where it is appropriate for a procedure of this nature to be followed in order to obtain confirmation of that before any proceeding is commenced. I consider that an applicant ought to be able to show reasonable grounds to think that there has been some defamation of the applicant, not merely that it is possible that that has occurred. In the absence of that, it is not in the interests of justice for the interrogatories to be delivered.

53. [53]
    In the present case there is good reason to think that the defamatory email was sent to the respondent, and there is the technical consideration that I referred to in Anderson v Gregory (supra), that emails are by their nature easy to forward.  On the other hand, there is I think not the same context suggesting that the forwarding of the email was likely that existed in Anderson v Gregory.  In the present case, presumably the respondent was in a position to know to whom the defendant had already sent copies of the email, and would have been unlikely to have been concerned to forward copies to anyone else.  Presumably the defendant forwarded the document to everybody the defendant wanted it circulated to, and it is not immediately obvious that there would have been any particular reason for the respondent to have forwarded it to anyone else.

54. [54]
    The plaintiff in an affidavit filed 11 March 2009 said frankly that he did not have any knowledge of whether the respondent had republished the “letter to shareholders” or republished some or all of the words contained in the “letter to shareholders”, or republished some or all of the meanings referred to in paragraph 11 of the statement of claim.^[31]  I note, however, that in the affidavit of the plaintiff, also filed 11 March 2009 and said to be in relation to interrogatories to the defendant, it was deposed that on 24 and 25 July 2007 the plaintiff was employed as general manager of Wexel Pty Ltd and that the plaintiff had access to all emails that were sent to and from Wexel email addresses.  In the earlier affidavit filed 11 March 2009, the plaintiff said in paragraph 6:

“Because the email names Joanne Ellery (at [email protected]) as a recipient of the email I believe that the email was sent to Joanne Ellery.”

55. [55]
    It appears that at least on 24 and 25 July 2007 the plaintiff would have been able to ascertain what emails were sent or received by [email protected], and therefore would have been in a position to ascertain whether the email was forwarded by her to anyone else from that email address.  It may be, however, that in fact no such investigation was carried out by the plaintiff, and could not now be carried out by him.

56. [56]
    The plaintiff’s solicitor wrote to the respondent on 23 December 2008 in terms which suggest that the possibility of republication was based simply on the proposition that the respondent received a copy of the email alleged to have been defamatory.  The respondent was asked to provide a statutory declaration that she had not republished or repeated orally or in writing or by any other means any part of the letter, any of the imputations in the letter, or any of the information in the letter to anyone, nor given, passed on, or otherwise distributed in any way any part of the letter to anyone.  There was a reply dated 23 January 2009 to an email forwarding a copy of this letter from a solicitor for the respondent, which simply sought an extension of time within which to respond, and did not contain anything which could be construed as an admission that there had been any such republication.  There was subsequently a communication from a solicitor who advised that he had been retained by the respondent and would write on 4 March 2009, but no such letter has ever been received by the plaintiff’s solicitor.

57. [57]
    On the whole of the evidence before me, the position is simply that there is some evidence that the defendant’s email, which (so far as the respondent is concerned) is alleged to have been defamatory, was sent to the respondent, but no actual evidence of any republication of it by her, nor evidence of any facts which might be regarded as logically probative of the proposition that the email or any of its contents may well have been republished by her. It seems to me that in all the circumstances the proposition that the respondent republished the email or its substance is merely speculative.

58. [58]
    I do not consider r 229(1)(b) was intended to be used to compel answers from persons in respect of whom the possibility of the defamation of the plaintiff was a mere speculative possibility, based simply on the fact that that person had been the recipient of an allegedly defamatory communication.  Although the wording is not as clear as the wording in some of the rules of other courts, it is at least consistent with the idea that the rule is to be used in circumstances where there is some proper basis to think that there may well be a cause of action against the “person” first mentioned in paragraph (1)(b).  In circumstances where the possibility of any cause of action against the respondent is speculative, there is no reason to think that there will be any injustice to the plaintiff in refusing the application, nor has it been shown that it is necessary in the interests of justice for such an order to be made.  On the material presently available, I do not consider that sufficient grounds have been shown to grant leave in respect of the respondent, and accordingly the second application is dismissed.