Langley v Age Company Ltd
[2002] VSC 190
•16 May 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 6114 of 2000
| TIMOTHY LANGLEY | Plaintiff |
| v | |
| THE AGE COMPANY LTD (ACN 004 262 702) | Defendant |
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JUDGE: | Ashley J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 16 May 2002 | |
DATE OF JUDGMENT: | 16 May 2002 | |
CASE MAY BE CITED AS: | Langley v The Age Company Ltd | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 190 | |
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Subpoena – subpoena for production – objection to production – test of relevance – documents sufficiently relevant to “Polly Peck” defence.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms G. Schoff | Coadys |
| For the Defendant | Mr M. Wheelahan | Minter Ellison |
| For Mr Loader | Mr J. Kennan SC and Mr R. Webster | Pearce Webster Dugdales |
For Ms Storelli Mr M. Clarke Lennon Settle
HIS HONOUR:
There are two matters for my consideration concerning this defamation proceeding which is fixed for trial by a judge and jury on 30 May 2002.
The first matter, agitated last Friday, is an appeal by the plaintiff against the Master's order made 22 April this year which, upholding objections by the recipients of two non-party subpoenas to produce documents, set aside those subpoenas.
The second matter, to be agitated today, is an objection by the plaintiff to inspection by the defendant of certain documents produced by Dr Robert Johnson, General Secretary of the Synod and Chief Executive Officer of the Victorian Synod of the Uniting Church of Australia.
I will deal immediately with the appeal matter.
The two subpoenas the subject of the Master's order were addressed respectively to the principals (they were named) of Wesley College and Methodist Ladies College. In substance they were identical, requiring production of:
“All documentation including but not limited to notes, correspondence, contracts, accounts and journal entries in relation to the payment of salary and benefits to the principal .. for the years 1995 to 2000 inclusive.
(t)he annual report of (the school) for each of the financial years 1995 to 2000 inclusive.”
The language of the subpoenas was unnecessarily wordy, but that was not at the heart of the objections to production. What the plaintiff sought, it is clear, was a document or documents setting out the remuneration package of each of the principals in each of the years enquired after.
The main grounds of objection to produce to subpoenaed documents pursued before the Master, and on appeal before me, was that the documents were not sufficiently relevant to any question in the proceeding. But that was not the only ground of objection. Senior counsel for the principal of Wesley College submitted that, even assuming relevance, production of what were said to be highly confidential documents would be an oppressive burden on the principal, the more so as the information could readily be obtained from other sources. Counsel for the principal of MLC submitted that the documents were commercial in confidence and that the court should not permit production or inspection of such documents. He further submitted that the subpoena directed to his client was no more than a fishing expedition. Counsel for both principals also submitted that if the subpoenas were otherwise supportable, they were unnecessarily wide.
In my opinion the critical question is whether the subpoenaed documents have been shown to be sufficiently relevant to a question in the proceeding. The Master considered the answer to that question was "no", but I consider that the answer should be "yes".
The question requires consideration of the pleadings. This is, as I have said, a defamation claim. The plaintiff alleges that he was defamed by two articles published in The Age, on 12 and 27 July 2000. For present purposes only the first article, entitled "Working for God, not mammon" was said by counsel for the plaintiff to be relevant.
Paragraph 1 of the plaintiff's further amended statement of claim, filed 30 March 2001 (the statement of claim) reads as follows:
“1. The plaintiff is and was at all relevant times:
(a)an ordained minister of the Uniting Church (‘the Church’);
(b)Superintendent of the Church’s Wesley Central Parish Mission; and
(c)Chairman of the Board and the Church Council of the Wesley Central Parish Mission.”
By paragraph 3 the plaintiff alleges:
“On 12 July 2000 the defendant published in ‘The Age’ of and concerning the plaintiff and of and concerning him in his profession and occupation of ordained minister of the Church an article entitled ‘Working for God, not mammon’, a copy of which is annexed hereto and marked ‘A’ (‘the first article’).”
In part, the article referred to in paragraph 3 reads as follows:
“Out here in Roxburgh Park, we clearly live in a different world to that of the Reverend Tim Langley, superintendent of the Wesley Central Mission, who has caused us shame in recent weeks, as previously secret information about $160,000 salary packages and $500,000 apartments became known.”
The plaintiff contends, as I understand it, that this passage fairly represents the thrust of one aspect of the article.
Returning to the statement of claim, the plaintiff alleges by paragraph 4 that the article was defamatory and that it was understood to mean, inter alia:
“(a)that the plaintiff, notwithstanding that he was an ordained minister of the Church, was devoted to the pursuit of wealth rather than serving God;
(b)that the plaintiff had acted shamefully by secretly arranging for himself a large salary package and a $500,000 apartment.”
By its defence to the statement of claim the defendant denies that the first article was defamatory of the plaintiff or that it meant or was understood to mean any of the meanings alleged by the plaintiff.
The defendant pleads, also, a Polly Peck defence[1] in respect of the first article.
[1]Polly Peck (Holdings) Plc v Trelford [1986] QB 1000.
The pleading is as follows:
“15.Further, in its ordinary and natural meaning the first article meant and was understood to mean:
(a)that Tim Langley, as a Uniting Church Minister, acted shamefully by accepting a salary package of $160,000 which included the use of a $500,000 apartment;
(b)that Tim Langley, as a Uniting Church Minister, breached the trust he owed to the rest of his church and the community by accepting a salary package of $160,000 which included the use of a $500,000 apartment.
16.In the meanings alleged in paragraph 15 hereof the first article was true in substance and in fact.”
The defendant has thus set itself the task of establishing the substantial truth of the facts alleged and the correctness of any statements of opinion expressed[2].
[2]Gatley on Libel & Slander, 9th Edition, paragraphs 11.5 and 11.7.
I permitted the plaintiff to rely, in connection with the appeal, upon an affidavit sworn by his solicitor, Mr Chris Stakis, on 6 May this year. Exhibited to the affidavit was a document discovered by the plaintiff - a memorandum allegedly given to him by the then managing director of the Wesley Central Parish Mission, a Mr Yates, on 2 April 1998 in the course of a conversation between the two of them. I was informed from the Bar table that the plaintiff's side had referred to this document in discussion between the legal advisers of the various interested persons before the Master's court hearing on 22 April. That said, I should point out that the plaintiff’s argument before the Master does not seem to have directed attention to the document, a circumstance that may well explain the different conclusions reached by the two of us.
The document headed, "Re Nature of Responsibility/Remuneration" says this:
“The appropriate relativity to the Superintendent Minister of Wesley Central Parish Mission are the two Uniting Church Schools
Wesley College - not incorporated – same as us – simply an integrated unit of the Uniting Church
Methodist Ladies College - incorporated in a similar way to our proposal.
(Epworth Hospital - not sure of incorporation nature – its much bigger and the schools are a better companion to WCPM.)
The ‘Chief Executive’ of all elements of the Uniting Church listed above, has to take final responsibility for a range of professional staff and is accountable in secular law for their performance.
WC, MLC and WCPM to all practical purposes, trade as a corporation and your personal and corporate liability, as mine is, is tantamount to that of the CEO, Company Director of a Public Company.
Our public benevolent institution status virtually incorporates us for taxation purposes and our role of employer and service deliverer does the rest.
(Initials) 2/4/98”
As I understand it, the plaintiff wishes to contend that it was factually incorrect for the defendant to impute, as it claims it did, that the plaintiff acted shamefully by accepting a salary package of the stated dimensions; that was because his employer had itself stated the benchmark for his remuneration, and because the subpoenaed documents could be expected to show that his remuneration at worst bore comparison with the remuneration paid or provided to the two principals.
Counsel for the plaintiff had to meet, of course, the fact that the Polly Peck defence focuses upon the plaintiff’s conduct as a Uniting Church Minister. She submitted that it will be a matter for the jury, in the event that the remuneration package of one or both of the principals is shown to have been compatible with the remuneration package offered to and accepted by her client, to decide whether the plaintiff's status as a Uniting Church Minister made his conduct in accepting the package shameful, notwithstanding what he was allegedly told and provided by Mr Yates.
Counsel for the principal of Wesley College focussed, in his submissions concerning relevance, upon aspects of the statement of claim. He highlighted the fact that paragraph 3 alleges that the first article was published "of and concerning (the plaintiff) in his profession and occupation of an ordained minister of the church"; and that a number of the imputations alleged by paragraph 4 refer to the plaintiff being “an ordained minister of (or ‘in’) the church” - see particulars (a), (h), (i) and (j). He submitted that in respect of the second impugned publication, although it was not directly relevant to the two subpoenas, there is a similar fixation upon the plaintiff's “profession and occupation of an ordained minister of the church”; see paragraph 7. He further submitted that the plaintiff's pleaded case concerning imputations made by the first article seeks to make much of the allegedly secret arrangements concluded by the plaintiff, not only with his employer; see particulars (b), (c), (d), (f), (h), (i) and (j).
Counsel for the principal of MLC submitted that the issue raised by the pleadings is whether the plaintiff acted shamefully as a minister in accepting the remuneration package that he did. It was not to the point that the plaintiff might believe that what he was to receive was commensurate with the remuneration package of a school principal. The question whether, as a minister, he acted shamefully in accepting the package was logically distinct. He further submitted that what might be relevant was the knowledge that Mr Yates had about the remuneration packages of the principals; not the facts concerning the packages. There was, he argued, nothing to show that Mr Yates knew the detail of these packages any more than did the plaintiff.
In reply, counsel for the plaintiff submitted that whilst, conceptually, it would be enough for the plaintiff to found his case on what he had been told about benchmark positions and upon his inference that the package he was offered was compatible with the remuneration paid or provided to the persons holding those positions, he wanted to go further. She informed me that the plaintiff does not intend to call Mr Yates at trial.
She informed me also that the plaintiff will not call direct evidence that Mr Yates knew the exact detail of the principals' remuneration packages. Rather, the plaintiff will ask the jury to infer that he knew that detail, or at least the general picture.
Counsel for the plaintiff argued, further, that the statement of claim alleges more than that her client was an ordained minister. She referred to paragraph 1 of the pleading, which I have already set out.
Finally, counsel for the plaintiff referred to the test described by Byrne J in Yunghans v Candoora No 19 Pty Ltd (No 5)[3] concerning relevance in the present context.
[3][2000] VSC 505 at paragraphs 12 and 13.
I accept the test of relevance to which I have just referred. I consider, on balance, that the subpoenaed documents - at least if their description is confined - meet that test.
It is true that, considering the Polly Peck defence upon which plaintiff's counsel much relied, the meanings which the defendants seek to justify associate the plaintiff's allegedly shameful conduct with his being a Uniting Church Minister. Even so, it seems to me that the plaintiff would be entitled to adduce evidence, against the proposition that his conduct was shameful, that his employer nominated the relevant benchmark positions within the framework of the Uniting Church - knowing, of course, that he, the plaintiff, was an ordained minister; and that he accepted his employer's analysis.
Assuming, next, that the plaintiff could get into evidence the conversation which he allegedly had with Mr Yates on 2 April 1998, or Mr Yates' memorandum of that date, it is at least arguable that the jury could infer that in identifying the benchmark positions Mr Yates knew - at least approximately - the amounts of remuneration packages of the principals. If that inference was drawn, it is at least arguable that the jury could infer that the remuneration package offered to and accepted by the plaintiff was compatible with the remuneration packages of the principals. Beyond that, it seems to me impossible to say, at this juncture, that the details of the actual remuneration packages of the principals could not get into evidence. In any of the situations just mentioned, it would be for the jury to decide whether, notwithstanding the benchmark positions nominated by the employer, or evidence of the precise value of the remuneration packages in the benchmark positions, and of the value of the plaintiff’s package, the defendant had established - on the Polly Peck defence - that the plaintiff's conduct as a minister in accepting his salary package was shameful.
The focus of the plaintiff's submission concerning relevance was, as I have said on a number of occasions, upon paragraphs 15 and 16 of the defence. It was not an answer to the argument thus put to concentrate upon aspects of the statement of claim. That meets a major argument advanced for the principal of Wesley College.
It is next true, as counsel for the principal of MLC submitted, that the question raised by the Polly Peck defence is whether the plaintiff acted shamefully as a minister by accepting the remuneration package that he did; not whether the plaintiff believed he had acted in such a way. But the import of the plaintiff's intended case is not directed to his belief; rather to establish a state of facts that contra-indicates shameful conduct as a minister on his part.
I do not accept, next, the submission of counsel for the principal of MLC that the validity of the benchmark positions must depend upon Mr Yates' knowledge of the remuneration packages of the principals, of which knowledge nothing is known - or would be learned at trial. I consider it arguable, as I have said already, that identification of benchmark positions, together with the offer of a particular salary package to the plaintiff[4] could enable an inference that Mr Yates knew, at least broadly, the remuneration packages of the principals.
[4]Not necessarily at the same time.
It is unnecessary, in the circumstances, to say anything about the submission for the plaintiff that the statement of claim by paragraphs 1(b) and (c) alleges that the plaintiff was relevantly something more than an ordained minister. Nor need I consider the possible relevance of the subpoenaed documents simply upon the plaintiff's case. Nor again need I say anything about a submission made in writing for the plaintiff, but not advanced orally, that the subpoenaed documents are relevant to a Lange defence[5] raised by the defence.
[5]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574.
I turn to the submission for the principal of Wesley College that production of the subpoenaed documents would be an oppressive burden on the principal, the more so as the confidential information sought can readily be obtained from other sources. I accept that the information sought is sensitive and does involve confidential commercial arrangements. I do not accept the submission that the information could readily be obtained from other sources. Senior Counsel for the principal told me, indeed, that his client's remuneration package is treated as highly confidential at Wesley College, that it is not even known to all members of the school council, and that the college has no reporting duties that require it to report the principal's package.
It is, as I have said, arguable that an inference might be drawn that in April 1998 Mr Yates knew at least the broad canvas of the principals’ remuneration packages. But I do not see that the availability of that inference should deny the plaintiff access to the precise information from the persons holding what were said to be the benchmark positions. The confidentiality of any documents produced in answer to the subpoenas is a matter, I should add, that I can address in any order which I make; and which can be addressed at trial in the event that evidence of the remuneration packages of the principals is admitted.
It follows from what I have already said that in my opinion the plaintiff has a legitimate interest in the subpoenaed documents; and that their being subpoenaed should not be considered a fishing expedition, as counsel for the principal of MLC contended.
That takes me to submissions concerning the width of the subpoenas. I have already said that I regard them as being unnecessarily wordy. What the plaintiff seeks is, as I have also said, clear; and the documents which are pertinent should be few. Last Friday, counsel for the principal of MLC handed up for my inspection a bundle of documents which seemed to me, absent argument, to be enough to meet the plaintiff's requirements. The parties should attempt to reach a practical solution to the question of what is to be produced or, if commonsense fails, they should submit to me their versions of orders I should make as to documents which are to be produced. I shall stand the matter down until 2.15 today at which time I wish to make orders, including orders as to costs. At that time I shall deal, inter alia, with any applications the principals might make for orders that will protect the confidentiality of documents which are produced.
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