Hanson-Young v Leyonhjelm (No 2)

• Jurisdiction: Australia Federal only
• Judge: WHITE J
• Judgment Date: 21 March 2019
• Neutral Citation: [2019] FCA 393
• Date: 21 March 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Hanson-Young v Leyonhjelm (No 2) [2019] FCA 393

File number:	NSD 1370 of 2018
Judge:	WHITE J
Date of judgment:	21 March 2019
Catchwords:	PRACTICE AND PROCEDURE – application pursuant to r 21.01 of the Federal Court Rules 2011 (Cth)for an order that the Applicant provide written answers to interrogatories – whether such an order is necessary for the fair disposition of the proceeding or to save costs – application refused. ; PRACTICE AND PROCEDURE – application by interlocutory application for leave to issue two subpoenas for two persons to attend trial to give evidence – consideration of circumstances in which the Court grants leave – leave granted.
Legislation:	Parliamentary Privileges Act 1987 (Cth) s 16(3) Federal Court Rules 2011 (Cth) rr 21.01, 24.01
Cases cited:	Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2012] FCA 290 Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN(NSW) 250 Austal Ships Pty Ltd v Incat Australia Pty Ltd [2010] FCA 795; (2010) 272 ALR 177 Lynch v Cash Converters Personal Finance Pty Ltd (No 4) [2018] FCA 988
Date of hearing:	12 March 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Other Federal Jurisdiction
Category:	Catchwords
Number of paragraphs:	84
Counsel for the Applicant:	Ms S Chrysanthou with Mr B Dean
Solicitor for the Applicant:	Kennedys
Counsel for the Respondent:	Mr AJH Morris QC with Mr KE Stoyle
Solicitor for the Respondent:	Sterling Law

ORDERS

		NSD 1370 of 2018
BETWEEN:	SARAH HANSON-YOUNG Applicant
AND:	DAVID EAN LEYONHJELM Respondent

JUDGE:	WHITE J
DATE OF ORDER:	21 MARCH 2019

THE COURT ORDERS THAT:

1. The Respondent’s application for an order that the Applicant provide written answers to the interrogatories in the form of Exhibit LB1 to the affidavit of Mr Leon Bertrand made on 15 February 2019 is refused.

2. Subject to the approval by a Registrar of the content of the proposed subpoenas, the Respondent is granted leave to issue subpoenas to Senators Stirling Griff and Derryn Hinch to attend to give evidence at the trial.

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

REASONS FOR JUDGMENT

WHITE J:

1. The principal issue presently before the Court is whether the applicant should be ordered, pursuant to r 21.01 of the Federal Court Rules 2011 (Cth) (the FCR), to provide written answers to interrogatories. The respondent also seeks leave to issue two subpoenas.

2. In the underlying proceedings, the applicant seeks damages (including aggravated damages) from the respondent in respect of alleged defamatory statements made by him commencing on 28 June 2018 and continuing until 2 July 2018, with some republications. The circumstances of the action are substantially, but not wholly, set out in my judgment on the respondent’s application seeking the striking out of the applicant’s Amended Statement of Claim (ASC) and for the permanent stay or dismissal of the proceedings: Hanson-Young v Leyonhjelm [2018] FCA 1688 (the Strike Out Judgment).

3. It is not necessary presently to repeat those circumstances in detail. It is sufficient to record that the applicant alleges that she was defamed by statements made or published by the respondent on four occasions. The applicant alleges that the respondent’s statements made on the second, third and fourth occasions conveyed the following defamatory meanings:

(i) the Applicant is a hypocrite in that she claimed that all men are rapists but nevertheless had sexual relations with them;

(ii) the Applicant had, during the course of a Parliamentary debate, made the absurd claim that all men are rapists;

(iii) the Applicant is a misandrist, in that she publicly claimed that all men are rapists.

4. In relation to the media statement published by the respondent on 28 June 2018, the applicant alleges that only the first and second of these meanings were conveyed.

5. By his filed Defence, the respondent admits in substance that he published or spoke the words of which the applicant complains but denies, or does not admit, that they conveyed the defamatory meanings she alleges. He pleads numerous defences including justification, qualified privilege, honest opinion, fair comment on a matter of public interest and constitutionally protected free speech.

6. In addition, as indicated in the Strike Out Judgment, the respondent pleads that the matters of which the applicant complains cannot be the subject of adjudication by this Court by reason of s 16(3) of the Parliamentary Privileges Act 1987 (Cth). This is so, he contends, because these matters comprise a repetition of statements made by the applicant and him in the course of debates in the Australian Senate, or responses to, or comments on, such statements.

7. The respondent also alleges that any harm to the applicant’s reputation caused by his words is overwhelmed by the reaction of the public to words spoken by the applicant herself on 2 July 2018.

8. Further again, the respondent alleges that the political views and opinions of the applicant and of her party are such that his words could not have caused any damage to the applicant’s reputation. He goes further and alleges that the public statements made by the applicant in response to, or occasioned by his statements have served to enhance the applicant’s reputation.

9. It will be necessary to return to some of these defences in more detail when addressing the interrogatories proposed by the respondent.

Interrogatories

10. Rule 21.01(1) of the FCR provides that a party may apply to the Court for an order that another party provide written answers to interrogatories. Rule 21.01(2) requires that an application under subr (1) be accompanied by an affidavit annexing the proposed interrogatories. The respondent has complied with that requirement.

11. The making of an order that a party provide written answers to interrogatories involves an exercise of a discretion. Rule 21.01 does not contain any express fetter on that discretion.

12. However, the very fact that a party must answer interrogatories only when required by Court order to do so, when contrasted with the position which once pertained in which parties could administer interrogatories as of right, suggests that the making of the order should not be regarded as the norm. This point was made by McKerracher J in Austal Ships Pty Ltd v Incat Australia Pty Ltd [2010] FCA 795; (2010) 272 ALR 177 at [7]:

The administering and answering of interrogatories is a form of discovery. Just as this Court has now substantially limited the scope for wide ranging discovery, the circumstances [in] which leave to administer interrogatories will be granted is increasingly rare.

13. Many of the principles guiding the exercise of the Court’s discretion to order a party to answer interrogatories were reviewed by Mansfield J in Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2012] FCA 290 and more recently still by Gleeson J in Lynch v Cash Converters Personal Finance Pty Ltd (No 4) [2018] FCA 988. It is not necessary to record presently all the matters to...