Summary of Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250
Court: Supreme Court of New South Wales (Full Court)
Judgment Date: 2/10/1952
Jurisdiction: Australia (New South Wales)
Citations: 72 WN (NSW) 250
The Defendant, a newspaper company, published two articles in the Sydney Morning Herald about the Plaintiff, a life insurance company in April 1950 asserting that the Plaintiff was “not actuarily solvent”, that a report of the Commonwealth Insurance Commissioner had disclosed that it was “the only life office in Australia with a deficiency of assets compared with its actuarily calculated liabilities to the public”, and that its true financial position was in fact worse than that report suggested because it had incorrectly included in its assets £119,911 as an “Establishment Account”. The articles also made allegations with respect to its then managing director Page, and urged the Federal or State Government to take action to protect policy holders.
The Plaintiff sued the Defendant for £100,000 for libel over the articles. The Defendant pleaded the defence of truth and public benefit (justification). An officer of the Plaintiff named Hayes swore an affidavit of discovery on 29 May 1951 which disclosed 30 documents at Schedule A of the affidavit and claimed privilege for an additional 13 documents at Schedule B, described merely as “documents numbered 31-43 tied up in a bundle and marked B and initialled by me the deponent”.
The Defendant then took out a summons for further and better discovery, which was granted by McClemens J, who took the view that it was impossible for the Plaintiff to only claim that 13 documents were privileged. McClemens ordered that the Plaintiff provide further and better discovery additional to those documents numbered 1-30, and that the documents be property listed and identified so that their general nature may be known.
Subsequently, Hayes swore another affidavit of discovery on 15 November 1951, deposing that the Plaintiff had 51 relevant documents and claiming privilege in respect of many. The Defendant’s solicitors then wrote to the Plaintiff’s solicitors pointing out that the affidavit did not comply with the order of McClemens J in various respects. In particular, it did not state that the documents listed were the only ones relevant to the issues in dispute, and the documents that were mentioned were not adequately identified.
Hayes swore another affidavit of discovery on 18 December 1951 deposing that to the best of his belief the documents listed in the affidavit were the only ones relevant to the case except for the ones listed at Schedule A of his first affidavit. Privilege was claimed by the Plaintiff for documents which showed its financial position at the dates of publication of the articles on the grounds that they related to the Plaintiff’s case only, and further that the Defendant was “not entitled to production and inspection” in such a case.
The Defendant then applied for a further affidavit to be ordered identifying the documents in question in schedule 2, to allow the Court to determine those documents were mentioned in the affidavit. The Plaintiff claimed privilege over its own books and records upon which reports of its financial position and its balance sheets were based. McClemens J, citing the case of Kent Coal Concessions v Duguid which held that once a balance sheet becomes relevant, the books upon which it is based are also relevant, ordered the Plaintiff to disclose those documents for which privilege was claimed. The Plaintiff appealed against this order.
On appeal, Owen J held that:
“A “fishing expedition”, in the sense in which the phrase has been used in the law, means that a person who has no evidence that there are a particular kind of fish in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the court pointing to the probability that a party to litigation has in his or her possession documents tending to destroy his or her case or to support the case of his or her opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere “fishing expedition”. In this respect actions of libel do not stand in any different position to any other form of action at law.”
Owen J held that this was not a case where the rule against ‘fishing’ applied because of the probability that the Plaintiff’s claim for privilege was “false or based upon a wrong conception of the issues”. Owen J further held that unless there is evidence that this may be the case, a court should not go behind an affidavit of discovery. Because in this case the documents that had been disclosed by the Plaintiff did lend support to the defence of justification, the documents upon which they were based were also discoverable. Whether there had been an improvement in the financial position of the Plaintiff since the deficiency in its financial position some years before the publication of the articles was a matter to be ventilated and decided at trial.
Owen J held that for these reasons the order of McClemens J had been properly made, and therefore the appeal should be dismissed with costs. Street CJ and Herron J agreed.