Cory v Blyth (No 2) [1976] PGLawRp 639; [1976] PNGLR 350 (17 September 1976)

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PRACTICE AND PROCEDURE - Interrogatories - Further and better replies - Declaration as to sufficiency of replies - Action for defamation - Knowledge and belief excludes information gained by solicitor - Answers to be made on information and belief since gained and held - Defendant not required to particularize general damages - Rules of Court O. XXXV, r. 9.

DEFAMATION - Practice and procedure - Interrogatories - Further and better replies - Declaration as to sufficiency of replies - Knowledge and belief excludes information gained by solicitor - Answers to be made on information and belief since gained and held - Defendant not required to particularize general damages - Rules of Court O. XXXV, r. 9.

On an application under O. XXXV, r. 9 of the Rules of Court seeking further and better replies to interrogatories delivered by the plaintiff in an action for oral defamation and a declaration as to the sufficiency of the plaintiff’s answer to the defendant’s interrogatories;

N1>(1) the defendant should answer to the best of his knowledge and belief (excluding any information gained by his solicitor) as to the facts of whether he used the words alleged or words to the like effect and as to who was present on the occasion in question.

N1>(2) a person interrogated should answer not only as to his recollection but on the information and and belief he has since gained and holds.

N1>(3) the plaintiff should not be required to particularize in answers to his interrogatories his claim for general damages otherwise than by fixing a figure on his writ of summons; such damages being a matter for the tribunal of fact.

This was an application made on summons by the plaintiff in an action for oral defamation seeking an order under O. XXXV, r. 9 of the Rules of Court that further and better replies be filed to two of the interrogatories delivered by him and a declaration as to the sufficiency of his answers to the defendant’s interrogatories.

PRENTICE DCJ: This application is made on summons in regard to interrogatories which have already been administered. The plaintiff seeks an order that further and better replies be filed to two of the questions he has asked. The defendant, in turn, complains as to the inadequacy of two of the plaintiff’s answers to the defendant’s interrogatories. The latter question is by arrangement, raised in a sensible fashion by the plaintiff seeking a declaration as to the sufficiency of his own answers.

Application is brought under O. XXXV, r. 9 of the Rules of Court which is in the following form:

“If any party interrogated omits to answer or makes an insufficient answer to any interrogatory, the party interrogating may apply to the Court or a Judge for an order requiring such other party to answer, or to make further answer, as the case may be. An order may thereupon be made requiring him or them to answer or make further answer, either by affidavit or upon viva voce examination, as the Judge may direct.”

N2>“1. Did not you on or about Friday 14th day of November 1975 between 4.00 p.m. and 6.00 p.m. or on some other and what date, or at some other and what time at Angoram Club, Angoram in the presence and hearing of Mr. John Benson speak the words set out in paragraph 3 of the Statement of Claim, or some and which of them, or words to the like effect?”

N2>“1. I can recall only that on or about the 14th day of November, 1975, during late afternoon over a glass of beer at the Angoram Club, Angoram, I made some remark about the Mitiam case and the breaking of louvres being linked with the plaintiff’s then apparent mental condition. There were several people present, probably, including Mr. John Benson but I cannot recall the names of such persons.”

The plaintiff contends that the answer is evasive and that the defendant has introduced irrelevant and embarrassing matter. The irrelevant matter is said to be the phrase “... during late afternoon over a glass of beer at the Angoram Club ...” That alleged to be embarrassing is the phrase “... being linked with the plaintiff’s then apparent mental condition ....”

I am of the opinion that the reference to the circumstances in which a remark was made is irrelevant - but not such as to call for any order by the Court. The second reference, I regard not as embarrassing, but as intended to be descriptive in oblique speech of what was said.

The question, though complicated in structure, covers a subject matter which has been allowed as relevant in jurisdictions such as that of the United Kingdom, where approval of the Court to the interrogatories proposed to be administered must be obtained. (See cases cited under O. 26, r. 1 at reference 26/1/9 White Book 1976 Edition at p. 439.) Under the United Kingdom rules it has been held that a party must make inquiries and answer to the best of his knowledge and belief. There is authority to suggest that he must include in his reply such knowledge as was gained by his servants and agents in the course of their employment. (White Book p. 446.) Mr. Cory urges that this should also include information gained for a defendant by his solicitor in preparing his defence. I do not think that this ought to be so. Communication between the defendant and his solicitor is privileged and Lyell v. Kennedy[cdxvii]¹ appears to be an authority in England to the effect that information gained by a party’s solicitor in preparation for trial need not be disclosed.

I am satisfied overall that the defendant’s answer is evasive and insufficient; and that he should answer to the best of his knowledge and belief (excluding any information gained by his solicitor) as to the facts of whether he used the words alleged or words to the like effect, and whether Mr. John Benson was present on the occasion in question. I order that he answer this question accordingly.

N2>“2. Did not you speak the said words, or some and which of them, or words to the like effect, at the time and place mentioned in question 1 in the presence and hearing of Mike Godson, Norm Liddle, Peter Johnson and a number of other persons or all or some of them and which?”

I am told by the plaintiff that the name “Godson” should be spelt “Goodson”; that a typing error occurred.

I should think the defendant not well advised if he has quibbled in answering this question, taking advantage of a mis-spelling. If he has done so, he has an opportunity now to correct his answer. It will be noted that the query as to whether persons other than those named were present, has been evaded. I accept the plaintiff’s submissions in regard to this answer. I agree that under the Papua New Guinea rule as under the English rule, a person interrogated ought to speak not only as to his recollection but on the information and belief he has since gained and holds. I find that answer insufficient. I order that the defendant answer this question to the best of his knowledge and belief (subject to the qualification as to privilege).

N2>“15. How is the figure of K10,000.00 calculated and under what head of damage is each claimed?”

“That I object to answer the said interrogatory as it is not admissible on the following grounds, amongst others, that the plaintiff’s claim for damages as set out in paragraph 4 of the statement of claim is for general damages and the defendant is not entitled to interrogate in relation thereto and as to how the said sum is calculated, that the interrogatory is of a fishing character and seeks to discover the evidence I intend to adduce in support of my case and seeks to ask how I intend to conduct or make out my case.”

Miss Campbell for the defendant cites authorities collected in Williams “Rules in Supreme Court of Victoria”, under a rule which is somewhat similar to that in the United Kingdom. These authorities suggest that a defendant should be able to interrogate as to damage in order to advise himself as to possible payment into Court (Horne v. Hough & Others[cdxviii]²). Miss Campbell indicates that a motion to allow payment into court in this case, is pending in the court. One has no difficulty in understanding that there may be many cases where such inquiries are relevant. For example, as to the manner in which the plaintiff may have mitigated damage and as to the various heads of special damage. In defamation cases it would clearly be material to know whether damages had been received from another in respect of the defamation concerned (Gatley 7th ed. p. 473). Questions as to the solvency of a company have been allowed (Dobson v. Richardson & Others[cdxix]³). But no case was cited where interrogatories were allowed in regard to general (as distinct from special) damages. There was no question here of special damage being alleged, and no question arises as to mitigation of damages.

General damages in all actions, but particularly perhaps in defamation actions where the conduct of the defendant right up to the end of his counsel’s address may be relevant, is a matter for the tribunal of fact. It does not appear to me appropriate that a plaintiff should be required to particularize the general, and in effect to make his own assessment of damage prior to trial, other than to the extent which he does, by fixing a figure on his writ of summons.

I consider the plaintiff’s answer to be adequate. I formally declare the answer to be sufficient and I refuse to order further answer to be made to the defendant’s interrogatory 15.

N2>“20. Have you, since the 14th November, 1975, been adversely affected in any other way by the alleged defamatory statement? If so, describe fully in what manner and to what extent.”

“Yes, in that the alleged defamatory statement is likely to adversely affect me in my profession as a barrister and solicitor in that members of the public would be likely to believe that I was not fit to engage in that profession and also damage in respect of the other matters set out in paragraph 4 of the Statement of Claim. I object to answering this interrogatory more fully upon the same grounds as set out in answer to 15th interrogatory hereof.”

I consider this question to be in character similar to that in Interrogatory 15 and that it has been sufficiently answered in the circumstances. I decline to order further answer to Interrogatory 20.

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[cdxvii][1884] UKLawRpCh 102; (1884) 27 Ch. D. 1 at p. 21.

[cdxviii](1874) L.R. IX C.P. 135.

[cdxix](1868) L.R. III Q.B. 778.

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Papua New Guinea Law Reports

Cory v Blyth (No 2) [1976] PGLawRp 639; [1976] PNGLR 350 (17 September 1976)

Papua New Guinea Law Reports - 1976