JTD v PDL[2022] QDC 88

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   In this matter, the plaintiff (“applicant”) claims from the defendant (“respondent”), damages for defamation.  By the Further Amended Statement of Claim (“FASOC”),^[1] five separate publications are pleaded, each claimed to have caused damage to the applicant.^[2]  In addition to damage to his reputation, it is asserted that the publications caused the applicant “to be terminated from his position [of employment]” and also “mental anguish, distress, embarrassment, humiliation and annoyance”.^[3]
2. [2]
   The pleaded context to these publications lies in understanding that at material times, each of the applicant and respondent were employed by the same employer and based at [...redacted...] (“the workplace”). Each of the five publications relates to complaints made by the respondent as to the alleged conduct of the applicant towards her, in that workplace context. Respectively, it is contended that the complaints as to such alleged conduct, were made:

   1. (a)
      as to the First Publication, on or about 1 July 2020, to one or more of four named other employees;
   2. (b)
      as to the Second Publication, on or about 1 July 2020, to at least a named police officer, in oral form;
   3. (c)
      as to the Third Publication, on or about 2 July 2020, to at least two named police officers, in oral and video recorded form;
   4. (d)
      as to the Fourth Publication, on or about 2 July 2020 and upon intake or admission to the Sunshine Coast University Hospital, orally to nursing and administrative staff; and
   5. (e)
      as to the Fifth Publication, on or about 21 August 2020, by “making oral statements” and “providing video recordings” to an employee of “Q Workplace Solutions”.
3. [3]
   In summary, it may be noted that:

   1. (a)
      the pleaded imputations of these publications variously include assertions that the applicant is not a fit and proper person to hold a real estate agent’s licence and had come to work so drug affected so as to be unable to perform his duties and that he had sexually harassed the respondent and threatened to kill her and had raped her on at least three occasions and had forced her to perform fellatio on him;
   2. (b)
      it is pleaded that as a consequence of police attending at the workplace on 2 July 2020, to question the applicant and search his vehicle, the false allegations of the respondent came to the attention of his employer, with the immediate consequence of the suspension of his employment; and
   3. (c)
      the applicant claims aggravated damages, in part, having regard to the knowingly untruthful nature of the respondent’s complaints as to “events that …. had never occurred”.
4. [4]
   It should also be noted that a curiosity of the FASOC is that despite it being understood that, by the hearing of this application, the applicant was in possession of the video recording referrable to the Third Publication, only the First and Second Publications are particularised as to the defamatory words alleged to have been used by the respondent.  And that in each case that is so particularised in a narrative form, but also having an appearance of being a compilation or summary of the allegations then made by the respondent. Or perhaps in representation of an extract of some written record which has been made as to what may have been said on a particular occasion.  Otherwise, and in respect of the Third and Fourth Publications, these are alleged to have been “in the same or substantially the same words as those used …. in the Second Publication”.  As to the Fifth Publication, the effective pleading is that the respondent re-published the statements published in the First and Second Publications.

This application

5. [5]
   By an amended application,^[4] the applicant seeks a declaration that “the allegations in paragraphs 4, 5, 6, 7, 8, 9, 17 and 21 of the FASOC are deemed admissions”.  Despite some apparent infelicity of that expression, it is clear enough that the applicant seeks to engage, in particular, r 166 of the Uniform Civil Procedure Rules 1999 (“UCPR”), to have it declared or ruled that the allegations in the FASOC, in the specified paragraphs, are deemed to be admitted having regard to the respondent’s response to each of them in the defence.^[5]
6. [6]
   Alternatively, the applicant seeks leave to deliver interrogatories pursuant to UCPR 229 “as a necessary aid to proving the allegations [as to what was published as the First, Second and Fifth Publications]”.
7. [7]
   Leaving aside some inconsistency in the numbered paragraphs to which respective reference is made, essentially this application, in the first instance, seeks a ruling that the applicant’s assertion in paragraph 1 of his reply.^[6] That pleading is as follows:

“1. The defendant’s denials in respect of paragraphs 4, 6, 7, 16 and 20 of the Further Amended Statement of Claim are evasive and unresponsive to the plaintiff’s Pleading in the absence of:

1. (a)
   the defendant pleading that she made no complaint and made no statements at all; or

2. (b)
   the defendant pleading what words she claims she actually used in her complaint and her statements;

And in those circumstances the denials are not accompanied by direct explanations for the defendant’s belief that the allegations are untrue, as required by UCPR 166(4), and are therefore deemed admitted.”

Deemed admissions?

8. [8]
   The inconsistencies as to the references to the paragraphs in the FASOC may be put to one side, for present purposes, as it is clear enough that the focus of the application is upon the response to the allegations in the FASOC as to the defamatory publications. Primarily, therefore, this application may be seen as directed at the response to the paragraphs in the FASOC where each of the First to Fifth Publications is alleged and particularised, as material facts.  Secondly, it is directed at the meaning or imputations which are pleaded as material facts. More particularly, the focus is upon the responses to those paragraphs of the FASOC, in the defence. The respective pleadings are as follows:

   1. (a)
      As to the First Publication:

      1. In the FASOC:

“4.    On or about 1 July 2020, the Defendant made a complaint to the Employer about the Plaintiff’s alleged conduct in the following terms (the First Publication):

‘[JDT] has been behaving erratically at work. He has turned up to work on numerous occasions still under the influence of drugs, either ecstasy or cocaine. I know that because (sic) would be sweating excessively and in an agitated state. He would also brag about it at work, telling me that he was buzzing or ripping from the night before and he would tell me that I would have to do his work for him because he was still drug affected from the night before. A few days ago, on 29 June, he was sweating excessively, he was agitated and slammed a stapler down on my desk in front of me, very aggressively.”

Particulars

1. The first publication was made to:

1. [...redacted...];
2. [...redacted...];
3. [...redacted...]; and/or
4. [...redacted...].

5.  The words used by the Defendant in the First Publication, either in their natural and ordinary meaning or by way of false inuendo, conveyed, and were intended to convey, the following defamatory meanings of and concerning the Plaintiff:

1. The plaintiff has been coming to work so affected by drugs that he was unable to perform his duties;
2. The plaintiff is not a fit and proper person to hold a real estate agent’s license.

2. (ii)
   In the Defence:

“3. The defendant denies as untrue the allegation in paragraph 4 of the Statement of Claim because she did not make a complaint to the employer in the terms or terms to the effect pleaded in the Statement of Claim.

  4.  As to paragraph 5 of the Statement of Claim, the defendant:

1. (a)
   to the extent that the allegation is that the words pleaded as being used in the First Publication were words used by the defendant she denies that allegation for the reasons pleaded in paragraph 3 of this defence;
2. (b)
   Says further that:

   1. To the extent that the Plaintiff says the words used in the First Publication are contended to be defamatory according to their natural and ordinary meaning the Plaintiff has not identified which of the imputations pleaded are said to derive from the natural and ordinary meaning conveyed by the First Publication; and
   2. To the extent that the plaintiff asserts that the words use (sic) in the First Publication convey a defamatory meaning or implication arising from the natural and ordinary meaning of the words, referred to as false inuendo, the Plaintiff has failed to identify the facts and matters relied on in support of that allegation; and
   3. In consequence, the pleading is embarrassing and the Defendant is unable to properly plead in response;
3. (c)
   Otherwise denies as untrue that the First Publication in its natural and ordinary meaning or by way of false inuendo was reasonably capable of conveying, or in fact conveyed, or was intended to convey any of the imputations pleaded in paragraph 5 of the Statement of Claim.”

 (b) As to the Second Publication:

(i) In the FASOC:

“6.  On or about 1 July 2020, the Defendant made a statement to the Queensland Police Service about the Plaintiff’s alleged conduct in the following terms (the Second Publication):

‘[JDT] has been behaving erratically at work. He has turned up to work on numerous occasions still under the influence of drugs, either ecstasy or cocaine. I know that because (sic) would be sweating excessively and in an agitated state. He would also brag about it at work, telling me that he was buzzing or ripping from the night before and he would tell me that I would have to do his work for him because he was still drug affected from the night before. A few days ago, on 29 June, he was sweating excessively, he was agitated and slammed a stapler down on my desk in front of me, very aggressively.

[JDT] has touched me inappropriately on numerous occasions during the past eight months.

[JDT] regularly brought a black revolver or pistol to work and was flashing it around. He was holding that when he forced me to remove my clothes and my underwear and then he raped me a number of times in the office while he was holding the gun. He held that black revolver or pistol to my head and he put the barrel of it into my mouth. While he was raping me, he put his hands around my neck in a strangling motion and he put his index finger in a way that resembles a revolver or pistol and pushing his fingers against my head. He also ran his hand across my throat, simulating that he was cutting my throat while he was raping me.

On other occasions during the past eight months, he forced me to perform oral sex on him at work.

He has raped me three times.

On several occasions. While he was raping me, he said to me:

I’m watching you 24/7; stop crying [PDL], I get angry when you cry [PDL], you know I get very angry; stop crying [PDL] or I will tie your hands up again; okay I am not going to shoot you today, but I might do it tomorrow, you just don’t know what day I might choose to do it; so, go home tonight and pretend nothing has happened, but I can get you at any time; you are under my control; instead of bringing a gun, I will bring a knife, so you tell me which one you prefer me to use; if you make me made (sic), well you know what will happen, I’ll show you; if you say anything, I will kill you and I will kill everyone around you.”

Particulars

1. The Second Publication was made orally.
2. The Second Publication was made in person.
3. The Second Publication was made to:
   1. Detective Senior Constable [...redacted...]; and
   2. Additional officers, not presently known to the Plaintiff.

7.  The words used by the defendant in the Second Publication, either in their natural and ordinary meaning or by way of false inuendo, conveyed, and were intended to convey, the following defamatory meanings of and concerning the Plaintiff:

3. The Plaintiff raped [PDL] on at least three occasions by engaging in penile-vaginal intercourse with her when she was not consenting.
4. The Plaintiff forced [PDL] to perform fellatio on him.
5. The Plaintiff is a rapist.
6. The Plaintiff sexually harassed [PDL] at work for eight months, including by repeatedly touching her inappropriately.
7. The Plaintiff has been stalking [PDL].
8. The Plaintiff is a murderous psychopath.
9. The Plaintiff is planning to murder [PDL].
10. The Plaintiff threatened that he would kill [PDL] and anyone who was around her at the time.
11. The Plaintiff has been coming to work so affected by drugs that he was unable to perform his duties.
12. The Plaintiff is an adulterer.
13. The Plaintiff is not a fit and proper person to hold a real estate agent’s license.

2. (ii)
   In the Defence:

“5. The defendant denies as untrue the allegation in paragraph 6 of the Statement of Claim because:

1. (a)
   she did not make a statement in the terms or in terms to the effect pleaded to Detective Senior Constable [...redacted...] on or about 1 July 2020;

2. (b)
   she did not make a statement in the terms or in terms to the effect pleaded to any other officer of the Queensland Police Service on or about 1 July 2020.

6. As to the allegations in paragraph 7, the defendant:

1. (a)
   to the extent that the allegation is that the words pleaded as being used in the Second Publication were words used by the Defendant, she denies that allegation for the reasons pleaded in paragraph 5 of this Defence;

2. (b)
   says further that:

1. (i)
   to the extent that the plaintiff asserts that the words used in the First Publication              are contended to be defamatory according to their natural and ordinary meaning the Plaintiff has not identified which of the imputations pleaded are said to derive from the natural and ordinary meaning conveyed by the First Publication;

2. (ii)
   to the extent that the Plaintiff asserts that the words use (sic) in the First Publication convey a defamatory meaning or implication arising from natural and ordinary meaning of the words, referred to as false inuendo, the Plaintiff has failed to identify the facts and matters relied on in support of that allegation;

3. (iii)
   In consequence, the pleading is embarrassing and the defendant is unable to properly respond to it;

3. (c)
   Otherwise denies as untrue that the Second Publication in its natural and ordinary meaning or by way of false innuendo was reasonably capable of conveying, or in fact conveyed, or were intended to convey any of the imputations pleaded in paragraph 7 of the Statement of Claim.”

3. (c)
   As to the Third Publication:

1. (i)
   In the FASOC:

8. On or about 2 July 2020, the Defendant made a statement to the Queensland Police Service about the Plaintiff’s alleged conduct (the Third Publication) in the same or substantially the same words used by the Defendant in the Second Publication.

Particulars

1. The Third Publication was made orally.
2. The Third Publication was made in person
3. The Third Publication was video recorded
4. The Third Publication was made to:

1. Detective Senior Constable [...redacted...];
2. Detective [...redacted...]; and
3. Additional officers, not presently known to the Plaintiff.

9. The words used by the Defendant in the Third Publication, either in their natural and ordinary meaning or by way of false inuendo, conveyed, and were intended to convey, the same meanings as those set out in paragraph 7 above.

2. (ii)
   In the Defence:

“7. As to the allegations pleaded in paragraph 8 of the Statement of Claim, the defendant denies those allegations as untrue:

1. (a)
   because:

1. (i)
   she did not make a statement in the terms or in terms to the effect pleaded to Detective Senior Constable [...redacted...] on or about 2 July 2020;

2. (ii)
   she did not make a statement in the terms or in terms to the effect pleaded to Detective [...redacted...] on or about 2 July 2020;

3. (iii)
   she did not make a statement in the terms or in terms to the effect pleaded to any other officer of the Queensland Police Service on or about 2 July 2020; and

2. (b)
   for the reasons pleaded in paragraph 6 of the Statement of Claim.

8. As to paragraph 9 of the Statement of Claim, the defendant:

1. (a)
   to the extent that the allegation is that the words pleaded as being used by the defendant in the Third Publication were words used by the Defendant, she denies that allegation for the reasons pleaded in paragraph 7 of this Defence;

2. (b)
   says further that:

1. (i)
   to the extent that the plaintiff asserts that the words  used in the First Publication              are contended to be defamatory according to their natural and ordinary meaning the Plaintiff has not identified which of the imputations pleaded are said to derive from the natural and ordinary meaning conveyed by the First Publication;

2. (ii)
   to the extent that the Plaintiff asserts that the words use (sic) in the First Publication convey a defamatory meaning or implication arising from natural and ordinary meaning of the words, referred to as false inuendo, the Plaintiff has failed to identify the facts and matters relied on in support of that allegation;

3. (iii)
   In consequence, the pleading is embarrassing and the defendant is unable to properly respond to it;

3. (c)
   Otherwise denies as untrue that the Second Publication in its natural and ordinary meaning or by way of false innuendo was reasonably capable of conveying, or in fact conveyed, or were intended to convey any of the imputations pleaded in paragraph 8 of the statement of claim.”

(d) As to the Fourth Publication:

(i) In the FASOC:

16. On or about 2 July 2020, the defendant attended upon and was admitted to the Sunshine Coast University Hospital (Hospital).

17. In the course of her intake or admission to the Hospital, the defendant said to hospital nursing and administrative staff the same or substantially the same words used by the Defendant in the Second Publication (the Fourth Publication).

Particulars

1. The identity of the individual nursing and administrative staff members of the hospital to whom the Fourth Publication was made is presently unknown to the Plaintiff, but Further Particulars of the Fourth Publication will be supplied following Disclosure.

(ii) In the Defence:

“16. As to the allegations in paragraph 17 of the Statement of Claim, the defendant denies those allegations as untrue because she did not make a statement in the same or in substantially the same terms pleaded in the alleged Second Publication to nursing and administrative staff at the Hospital on or about 2 July 2020.”

5. (e)
   As to the Fifth Publication:

(i) In the FASOC:

18. As a direct result of the Defendant’s false report to the employer and the Queensland Police Service, on or about 14 July 2020 the Employer engaged an independent investigator, Q Workplace Solutions, to investigate the allegations pleaded in paragraphs 5, 7 and 9 of this Statement of Claim, those allegations became known to employees of that business.

19. The Plaintiff was identified to Q Workplace Solutions by name.

20. On a date unknown to the Plaintiff, but believed to be approximately 21 August 2020, the Defendant attended a meeting with [...redacted...] of Q Workplace Solutions.

21. In the course of the meeting with [...redacted...], the defendant re-published the statement pleaded in paragraphs 5, 7 and 9 of this Statement of Claim (the Fifth Publication).

Particulars

1. The Fifth Publication consisted of the Defendant:
   1. Making oral statements to [...redacted...]; and
   2. Providing video recordings to [...redacted...]”

(ii) In the Defence:

“20. As to the allegations in paragraph 21 of the Statement of Claim the defendant denies those allegations as untrue because:

1. (a)
   she did not make any statements in terms of or to the effect of the statements pleaded in paragraphs 5, 7 and 9 of the Statement of Claim during her meeting with [...redacted...]; and

2. (b)
   for the reasons pleaded in paragraphs 4, 6 and 8 of this Defence.”

9. [9]
   In reference to UCPR 166(4), the applicant’s contention is that each of these pleaded denials is not accompanied by the requisite “direct explanation for the party’s belief that the allegation is untrue or cannot be admitted”.  Accordingly, it is contended that UCPR 166(5) is engaged, to deem the respectively pleaded material facts, as admitted.
10. [10]
    Particular reliance is placed upon the following explanation of the requirement in UCPR 166(4), by Daubney J in Cape York Airlines Pty Ltd v QBE Insurance (Australia) Ltd:^[7]

11. [11]
    As some context for these observations in the Cape York Airlines decision, Daubney J noted some earlier authority in respect of the pleading rules in the preceding Rules of the Supreme Court and similar rules of pleading, which allowed for denials and non-admissions as “a common traverse which did no more than put the plaintiff to proof of the allegation traversed”.^[8]  It was further noted that under such rules:

1. (a)
   “a ‘bare traverse is a perfectly good plea provided that all that is thereby intended is to put the plaintiff to proof of his case’”;^[9]

2. (b)
   a consequence “of pleading a traverse by a bare denial was that the defendant was not permitted to adduce evidence beyond merely contradicting the plaintiff’s evidence on the fact which had been denied and if a defendant wished to go further than mere contradiction by putting an affirmative case it was required to plead that in its defence”.^[10]

12. [12]
    In contrast to that position and also in contrast to a non-admission, in respect of which the premise lies in ‘uncertainty as to the truth or falsity of the allegation’ and ongoing obligation as to reasonable inquiry, towards admission or denial, it could “therefore be said that the scheme of pleading provided for under the UCPR means that a party may only plead a denial of an allegation of fact made by its opponent if the party believes that allegation to be untrue.”^[11]
13. [13]
    It is also necessary to understand that there was also particular emphasis noted as to the distinction to be drawn between the requisite direct explanation for the belief that an allegation is untrue and the more general requirements of UCPR 149(1)(b) to plead all material facts on which a party relies^[12] and UCPR 150(4)(c) to “specifically state any matter that if not specifically stated may take another party by surprise”.^[13]  And further, that an explanation for a denial, given pursuant to UCPR 166(4), does not create any issue of fact for determination at trial.^[14]
14. [14]
    Further, and after making observation as to the necessity of reading UCPR 166(4) as disjunctively referable to non-admissions and denials, posing questions as to the function to be served by the direct explanation and reviewing other authorities as to the operation of the provision,^[15] Daubney J concluded as follows (in prelude to the passage particularly relied upon by the applicant):

1. it compels the responding party to expose, at an early stage of the proceeding, its rationale for a joinder of issue on a particular allegation;
2. it necessarily compels the responding party to formulate that rationale. In other words, the party must ask itself, and be able to answer the question, “Why am I denying this fact?”

15. [15]
    In adoption of the approach taken in the Cape York Airlines decision and the imprimatur as to identification of the precise allegations of fact to be addressed,^[16] it may be seen that by paragraph 4 of the FASOC it is alleged that, on or about 1 July 2020 the defendant:

• made a complaint;
• to the employer (particularised to potentially be to named persons);
• about the plaintiff’s alleged conduct;
• in the stated terms.

16. [16]
    Upon such analysis, it may be seen that the response in paragraph 3 of the defence is in denial of “the allegation” but that the purported explanation “because she did not make a complaint to the employer in the terms or terms to the effect pleaded in the statement of claim”, only aptly applies to that part of the allegation as to the terms in which such complaint may have been made. Although the applicant contends that the responses leave him without knowledge as to “whether the respondent denies speaking about him to any of the people identified …. or whether she just denies the words or the effect of what she said”,^[17] he also points out, with some apparent justification, that it is unlikely that the defendant seeks to put in issue the occasions or fact of publication, rather than the terms of any such publication.^[18] And in submissions made for the respondent upon this application, it is contended that:

“Put simply, her explanation is that she did not say the words allegedly published or words to that effect on any of (sic) occasions relied upon by the plaintiff in his pleading”.^[19]

17. [17]
    Accordingly and in these circumstances, it might be concluded that UCPR 166(4) is applicable to deem the other material facts, admitted as alleged in paragraph 4 of the FASOC.^[20] And a similar exercise, to similar effect, might be undertaken in respect of each of the respective responses in paragraphs 5, 7, 17 and 20 of the defence.^[21]
18. [18]
    However, that has not been the main point of this application and the applicant specifically seeks to vindicate his contention that “a responsive pleading and one that would avoid the Plaintiff being taken by surprise at trial, is one which sets out, at least as best as she can, the words that the defendant did say and identifies the people to whom those words were spoken”.^[22]
19. [19]
    The essential question is therefore as to whether what is provided by way of explanation for the denial of the alleged terms of the publication, is a sufficiently “direct explanation for the party’s belief that the allegation is untrue”, in accordance with UCPR 166 (4).
20. [20]
    For the respondent it is noted that “there is no advancement of a positive case, such that would requires (scil - require) identification on the pleadings” and contended that the response is clear enough and sufficient for the purposes of UCPR 166 (4). In particular, it is pointed out that the applicant bears the onus to prove the alleged defamation and that this includes the onus to prove what was published on each occasion. ^[23]

21. [21]
    As demonstrated by reference to the Cape York Airlines decision, it is critical to recognise the distinction between the explanation required by UCPR 166(4) and the requirements in UCPR 149(1)(b) and (c) and 150(4)(c) as to pleading material facts on which a party relies and matters which may take another party by surprise.  As also noted in that decision, in some circumstances, the nature of the explanation:

“may…. necessarily [compel] the party to plead, in compliance with r 149, the material facts (not evidence) on which it will rely to controvert the allegation or other matters to prevent the opponent being taken by surprise”.^[24]

However, that, obviously, need not be the result of every explanation given pursuant to UCPR 166(4).

22. [22]
    There is recent discussion in Miller v Nakhla,^[25] of the choices presented to a plaintiff in pleading an alleged defamation and the extent to which, as a matter of principle, the context for the material facts, being words alleged to be defamatory, must be included,^[26] particularly in reference to Robinson v Australian Broadcasting Corporation.^[27]  As noted above and quite apart from the curiosities that there is no separate pleading of the alleged defamatory words in respect of the separately alleged Third, Fourth and Fifth Publications (despite the acknowledgement of availability of a video recording for the Third Publication and some availability of records or notes in respect of the Fourth Publication),^[28] there is also some sense of curiosity in the pleaded terms of each of the First and particularly, the Second Publication, as being redolent of a summary of a number of related allegations allegedly made by the applicant. 
23. [23]
    What is necessary is that the “[p]assages relied on as defamatory [as] material facts…should be clearly identified and set out in the pleadings”.^[29]  On the face of the FASOC, it is the entirety or composite of the terms set out respectively in paragraphs 4 and 6, which is alleged as the defamatory words for the First and Second publications, with the Third and Fourth publications simply alleged on the basis of the publication of “the same or substantially the same words as those used by the defendant in the second publication”^[30] and in respect of the Fifth Publication, on the basis of re-publication of the statements pleaded in respect of the First, Second and Third publications.^[31]
24. [24]
    Having adopted such a broad approach in the FASOC, there is an inherent difficulty in the applicant’s criticism of the broad approach taken in response.  Moreover, the question legitimately arises as to how such an approach by the party bearing the onus in the proceeding, including in respect of proof of the words used, requires the respondent to explain, in any more specific particularity, what part or parts of such an allegation may be admitted.^[32]
25. [25]
    In these circumstances, it should not be concluded that the respondent has not provided a direct explanation in accordance with UCPR 166(4), in respect of her denial of publication “in the term or terms to the effect pleaded in the statement of claim”.
26. [26]
    The application also extends to seeking that there is deemed admissions in respect of those paragraphs of the FASOC pleading the meanings or imputations of the pleaded defamatory words.
27. [27]
    In this respect, the response in the defence must necessarily be upon the basis that the plaintiff proves the publication of the defamatory words respectively alleged by the plaintiff, as is acknowledged in sub-paragraph (a) of the response, in each instance. As the applicant contends,^[33] it may not always be necessary to precisely particularise which part or parts of a publication give rise to any defamatory imputation, particularly when dealing with a relatively short publication.  Although there may be room for some debate about the application of such principle to the complexities of the alleged Second Publication, in the absence of some other application by the respondent in respect of her ability to respond to the pleading, the responses in paragraph 4 (b), 6(b) and 8(b) of the defence do not provide any response to the allegation made in the FASOC.
28. [28]
    Whilst what is otherwise pleaded in sub-paragraphs 4(c), 6(c) and 8(c) of the defence, may be seen as directed at some explanation for the denial made, in each instance the first appearance is the difficulty noted in Groves v Australian Liquor Hospitality and Miscellaneous Workers Union & Anor,^[34] of the inadequacy of a “mere statement to the opposite of what is alleged”. Apart from that part of the allegation relating to the intended meanings of the publication in issue, there is also an allegation as to an interpretation of the meaning reasonably conveyed by the words used.  In each of these respects, it may well be that an appropriate response may be a mere contrary assertion. However and as has been noted, the effect of UCPR 116(4) is not to allow a mere traverse and here it may be accepted, as the applicant contends, that the prelude to sub-paragraph (c) in each instance in the defence, is not an apt or sufficient device to allow the breath and generality of the responses made in each sub-paragraph. 
29. [29]
    In the absence of some other application as to her ability to respond to the individually pleaded imputations arising from the publications pleaded by the plaintiff, it should be concluded there is not an adequate ‘direct explanation’ for the respondent’s blanket denial of each such allegation.  The problem is particularly acute in respect of those imputations which appear to simply restate some published words or what may appear, at face value, to be the clear or unequivocal meaning of particularly pleaded words.

Interrogatories?

30. [30]
    Given that the applicant has not been successful in obtaining a ruling as to the application of UCPR 166 (5) to the pleaded material facts as to the terms of the alleged defamatory publications, it is necessary to consider the alternative relief sought, for leave to interrogate pursuant to UCPR 229.
31. [31]
    In written submissions,^[35] that leave was sought in respect of the specific interrogatories contained in the draft annexed to the amended application.^[36] The stated basis was that unlike the applicant, the respondent was a party to each relevant conversation and that:

“…. there is not likely to be available to the Plaintiff at the trial another reasonably simple and inexpensive way of proving the matter sought to be elicited by those interrogatories”.

32. [32]
    Particular reliance is placed on the following observations of Chesterman J in Cross v Qld Rugby Football Union and Anor:^[37]

“[13] It has always been a proper use of interrogatories to elicit information from a party who has knowledge of facts relevant to the facts in issue in the cause of action where the interrogator does not possess that information…..”

33. [33]
    The draft interrogatories are directed only at the First (draft interrogatories 1-6), Second (draft interrogatories 7-10) and Fifth Publications (draft interrogatories 11 and 12). It is otherwise conceded, in the written submissions, that a condition upon which such leave may be granted pursuant to UCPR 230 (1)(b) may not be satisfied in respect of the other publications, particularly in respect of the available records as to what constituted the Third and Fourth publications.^[38]
34. [34]
    However and on the hearing of the application, it was ultimately only pressed in respect of draft interrogatories 7, 8, 11 and 12. This was because, despite the filing of the Second Further Amended Statement of Claim, in order to particularly support draft interrogatories 1-6, by amending what had been pleaded in paragraph 4 in the FASOC by adding two further names and the words “the following representatives of the Employer”:

    1. (a)
       Each of the draft interrogatories is premised in terms as to whether the applicant said “words to the effect that [she] had been sexually assaulted by the Plaintiff”; and
    2. (b)
       The allegation as to that First Publication does not allege any assertion which may be seen as within any such description.

Also, it was ultimately acknowledged that draft interrogatories 9 and 10 were effectively repetitious of draft interrogatories 7 and 8.^[39]

35. [35]
    Accordingly, this aspect of the application was pressed only in respect of the following draft interrogatories:

“7. On or about 1 July 2020, prior to participating in a recorded interview with Detective Senior Constable [...redacted...], did you say to Detective Senior Constable [...redacted...], words to the effect that you had been sexually assaulted by the plaintiff?

8.  If the answer to Q7 is yes, what words did you use?

……

11.  On or about 10 August 2020 did you say to [...redacted...] of Q Workplace Solutions words to the affect that you had been sexually assaulted by the plaintiff?

12.  If the answer to Q11 is yes, what words did you use?”

36. [36]
    The respondent’s contention is that the applicant has not shown a proper basis for leave to be granted for the proposed interrogatories, because:

    1. (a)
       The draft interrogatories do not relate to a matter in issue between the parties;
    2. (b)
       Allowing such interrogatories would be futile as any new cause of action in defamation based on words allegedly spoken by the defendant in or about July 2020 would now be statute barred; and
    3. (c)
       It is not in the interests of justice for the plaintiff to be granted such leave.
37. [37]
    It may be seen that the first and perhaps second points were germane to the applicant’s abandoned proposal in respect of draft interrogatories 1-6.  However and in respect of the remaining proposed interrogatories, it may be accepted that by using the terminology “sexual assault”, in underpinning the proposed questions, the applicant is not seeking to ascertain whether he has some cause of action other than that specifically alleged in the FASOC.^[40] Although, it should again be noted, that is upon the basis that in each instance, it is alleged that the applicant has repeated words to the effect of those alleged as the Second Publication.^[41]
38. [38]
    Accordingly, the issue is as to whether or not it is in the interests of justice to grant the leave which is sought, in the exercise of the court’s discretion pursuant to UCPR 229.^[42] In the exercise of such discretion, it may be accepted that the function of interrogatories extends beyond allowing a party to prove facts it may otherwise be unable to establish and to allowing for the potential extraction of admissions, so as to save time and expense and undermine an opponent’s case, at trial. Further and as is the effect of the decision in Kaiser v George Laurens (NSW) Pty Ltd,^[43] for example, there is no necessary impediment to interrogation in order to have another party admit the publication of defamatory words.
39. [39]
    However and pursuant to UCPR 229, leave to do so is required and UCPR 230(1)(b) provides the ordinary fetter to the exercise of discretion which is involved.^[44] The evidence before the court does not permit of a favourable conclusion in respect of that condition. There is no evidence as to what is or might be available to the applicant from the Queensland Police Service in respect of the Second Publication or as to the efficacy of seeking such information in terms of the considerations arising under UCPR 230(1)(b).^[45] The position in respect of the Fifth Publication is similar, in that the evidence is only as to the contents of a letter, dated 26 August 2020, sent to the applicant by the “General Manager HR of [...redacted...]” in reference to his participation in “an interview with [...redacted...], investigator Q Workplace Solutions (“[...redacted...]”), in relation to the investigation into the serious allegations made against you by [PDL] (“the Serious Allegations”) and which attaches “a summary of the Serious Allegations”.^[46] However, there is, for instance, no evidence as to any attempt in respect of third-party disclosure or as to the efficacy of doing so.
40. [40]
    Moreover, there is an absence of apparent efficacy in the proposed interrogatories. While it may be understood that the underpinning terminology “sexual assault” may have been chosen in attempt to minimise the number of proposed interrogatories, the underlying difficulty is that despite any general understanding of what may be meant, it is an undefined term and not representative of any terminology pleaded in respect of the Second Publication. It may therefore be doubted that leaving such interpretation open to the respondent is likely to assist in the objective, pursuant to UCPR 5, of facilitating the just and expeditious resolution of the real issues in this matter, at a minimum of expense.

Conclusion

41. [41]
    Given the limited nature of the success of the applicant, as has been explained in these reasons, particularly in the context of what has not been successfully achieved as the main thrust of this application, it will be appropriate to hear the parties as to the form of any relief with a view to the appropriate and efficient progress of this litigation, and any consequential orders.