Langley v Age Co Ltd

[2000] VSC 378

SUPREME COURT OF VICTORIA          

Not Restricted

PRACTICE COURT

No. 6114 of 2000

TIMOTHY JOHN LANGLEY	Applicant
v
THE AGE CO. LTD.	Defendant

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JUDGE:	Eames J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September 2000
DATE OF JUDGMENT:	15 September 2000
CASE MAY BE CITED AS:	Langley v The Age
MEDIUM NEUTRAL CITATION:	[2000] VSC 378

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Injunction - Equity - Confidential information - Newspaper intending to publish contents of "without prejudice" offer of compromise contained in correspondence between solicitors - Right in equity to protection of confidential documents - Balance of convenience.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr W.T. Houghton QC with Ms G. Schoff	Coadys
For the Defendant	Mr P. Bartlett (Sol.)	Ebsworth & Ebsworth

HIS HONOUR:

1. This is an application which is probably technically an ex parte application but in fact is not so, in that I have caused to ensure that the respondent, or the intended respondent, to the application by summons, which will be issued as part of the order I propose to make, is represented, and I am indebted and assisted by the attendance of Mr Bartlett, the solicitor for The Age, who has managed to get here at very short notice and to make helpful submissions.

1. The application is to restrain publication by The Age tomorrow of an article concerning the applicant, Timothy Langley, who was formerly the Superintendent of Wesley Central Parish Mission and has since been terminated in that employment.  The newspaper, from what I have been told, will tomorrow, unless restrained, publish the contents of a confidential letter of offer of compromise which was provided by the solicitors for Mr Langley to the solicitors for the Wesley Mission, or the Uniting Church, whichever is the appropriate body concerned.  That letter was headed "Without Prejudice" and is plainly a document which would be described as a confidential document, and indeed, it seems to me, it is a particular form of confidentiality well recognised by the courts as reflecting in itself a public interest, namely, in the rights of parties to negotiate freely and on a confidential basis as between themselves so as to resolve disputes which either are or may come before the courts and occupy valuable time and public funds, and to the detriment of the comity of the community.

1. The application which is made seems to me to be one which meets the first limb of an application for an injunction.  There is plainly a serious question to be tried as to whether publication of the information contained in that letter will constitute a disclosure of confidential information, which right to confidentiality is a right in equity which should be protected.

1. The rights to confidentiality are well recognised by the courts.  Some cases were cited to me.  I refer to Moorgate Tobacco Co. Ltd. v. Philip Morris Ltd (No.2) (1984) 156 C.L.R. 414 at 438 in the judgment of Deane, J.:

”Relief under the jurisdiction is not available unless it appears that the information in question has the necessary quality of confidence about it and that it is significant, not necessarily in the sense of commercially valuable but in the sense that the preservation of its confidentiality or secrecy is of substantial concern to the plaintiff." 

1. There is a difference identified in the authorities between the considerations relevant to protection in the case of an individual and in the case of a government department seeking to restrain those proposing to publish something which is confidential to government:  see Commonwealth v. John Fairfax & Sons Ltd (1980) 147 C.L.R. 39 at 51; The Attorney-General for the United Kingdom v. Heinemann Publishers (1987) 75 A.L.R. 353.

1. As I have said, the relevant material here is plainly, in my view, confidential or, at the very least, clearly arguably so, and there is plainly a public interest in the interests of justice that matters, as I have said, between parties attempting to negotiate a settlement are protected when they seek it by way of a "Without Prejudice" offer.  The interests of justice is well recognised in this field as a relevant public interest supporting a claim to confidentiality:  see Garner v. Garner (1930) 36 T.L.R. 196. So there is a serious question to be tried.

1. The question of the balance of convenience seems to me to fall on the side of granting the interim injunction which is sought.  It does not seem to me that there is any pressing requirement that The Age's right to publish material in the public interest should be given priority over the right of the plaintiff to confidentiality.  No doubt this would certainly be of interest to the public. I will assume for the sake of argument that the publication of the compromise offer could be described as in the public interest, and probably it could. However, that public interest collides with the public interest in the protection of privileged documents.  There is no reason why the rights of The Age will be irretrievably prejudiced if publication does not occur tomorrow and if subsequently, on full argument, it is determined that The Age should be entitled to publish.  On the other hand, it seems to me that once confidentiality of this information is breached, it is irretrievable so far as Mr Langley is concerned, and that of itself seems to me a compelling argument for granting the relief at this time.

1. I propose therefore to make an order returnable next Wednesday at 10.30.  The order I will make is that, firstly, subject to the plaintiff giving the usual undertaking as to damages, subject further to the plaintiff issuing an appropriate summons supported by affidavit material returnable in this court by 10.30 a.m. next Wednesday, 20 September 2000, I will order that the defendant in proceedings No. 6114 of 2000, namely, The Age Co. Ltd., its servants or agents, be restrained until 4.15 p.m. Wednesday 20 September 2000 or until further order by the court from publishing, distributing or in any way disseminating information which generally or specifically discloses the terms of the offer of compromise made by the plaintiff and contained in a letter from his solicitors Coadys to Messrs Ebsworth & Ebsworth dated 14 September 2000 and marked "Without Prejudice".  I will reserve the question of costs.

1. I said that I required an undertaking to issue the proceedings, did I not?

1. MR HOUGHTON:  Yes, I can give both undertakings.  The Reverend Langley is present in court.  I give the usual undertaking as to damages on behalf of Reverend Langley and secondly I give an undertaking that the Reverend Langley will issue the appropriate summons with supporting material returnable next Wednesday at 10.30 in this court.

(Discussion ensued.)

HIS HONOUR:  I will make an order under Order 60 Rule .04 that the order in this case may be signed by a judge.  Would you add to the order that the issue of proceedings is to be served on the defendant by 2 p.m. Tuesday
19 September.

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