Moran v Schwartz Publishing Pty Ltd [No 7]
[2016] WASC 422
•23 DECEMBER 2016
MORAN -v- SCHWARTZ PUBLISHING PTY LTD [No 7] [2016] WASC 422
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 422 | |
| Case No: | CIV:1894/2014 | 17 NOVEMBER 2016 | |
| Coram: | KENNETH MARTIN J | 23/12/16 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Mediation referral | ||
| B | |||
| PDF Version |
| Parties: | TOBIAS FRIEDRICH MORAN SCHWARTZ PUBLISHING PTY LTD VIRGINIA PETERS |
Catchwords: | Practice and procedure Directions hearing Plaintiff's application for mediation Defendant resistance seeking to challenge privilege claims re discovered documentation |
Legislation: | Nil |
Case References: | Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 Moran v Schwartz Publishing Pty Ltd [No 6] [2016] WASC 168 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SCHWARTZ PUBLISHING PTY LTD
First Defendant
VIRGINIA PETERS
Second Defendant
Catchwords:
Practice and procedure - Directions hearing - Plaintiff's application for mediation - Defendant resistance seeking to challenge privilege claims re discovered documentation
Legislation:
Nil
Result:
Mediation referral
Category: B
Representation:
Counsel:
Plaintiff : Mr M L Bennett
First Defendant : Ms C Galati
Second Defendant : Ms C Galati
Solicitors:
Plaintiff : Bennett + Co
First Defendant : Carmel Galati
Second Defendant : Carmel Galati
Case(s) referred to in judgment(s):
Moran v Schwartz Publishing Pty Ltd [2014] WASC 334
Moran v Schwartz Publishing Pty Ltd [No 6] [2016] WASC 168
1 KENNETH MARTIN J: This is a defamation action commenced in 2014 arising out of the publication of a book authored by the second defendant entitled 'Have You Seen Simone?'. There has been a high level of prior interlocutory disputation between the parties, as is reflected in a number of reserved reasons already published in this action. However, during 2016 the pace of progression towards trial slowed considerably.
2 On 27 May 2016, the plaintiff filed a verified list of documents by way of formal discovery. In the process, he asserted claims of privilege over certain documents that were identified under part 1A of the list. Privilege claims were asserted over documents 14, 15, 16, 84, 121 and 122. For convenience, I set out the basis of objection which follows a description of each of these documents from the list as follows.
3 Appearing in the list under the heading 'Notes and Diary Entries' are the following documents discovered by the plaintiff:
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4 Appearing under the heading 'German Solicitors':
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5 Appearing under a heading 'Miscellaneous Documents':
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6 The plaintiff has objected to producing for inspection documents 14 and 15 on the grounds of 'Legal professional privilege', and also of 'Privilege against self-incrimination'.
7 As regards document 16, the objection claim is for 'Legal professional privilege' alone. The objection claim as regards document 84 is also for 'Legal professional privilege' alone. As regards document 121, the objection raised is solely on the basis of 'Privilege against self-incrimination'.
8 Some background in respect of that foreshadowed self-incrimination privilege objection to inspection position may be found in my immediately prior set of interlocutory reasons, Moran v Schwartz Publishing Pty Ltd [No 6] [2016] WASC 168, albeit the plaintiff's objection position looks to have evolved somewhat over time.
9 In further amplification of all the privilege claims against inspection, it is necessary to note pars 8 through 18 of the plaintiff's affidavit verifying his list of documents, which elaborate upon the basis of his privilege claims. Paragraphs 8 through 14 of that affidavit appear under a heading '"100 Page" Document'.
10 That heading presents as being a reference to text from a chapter of the book 'Have You Seen Simone?' which commences at page 232 (in the paperback publication). The chapter relates circumstances of a visit to Perth by the second defendant (the author of the book), Ms Peters, who had travelled to a western suburb of Perth to meet the plaintiff and his wife, Cassandra (referred to as 'Cass'). This visit was for the purposes of an interview which the plaintiff and his wife had agreed to, on terms. At page 237 of the book this paragraph appears:
Surely he could see this selective memory was illogical? Cass was looking at him, puzzled, not flicking through the one-hundred-page document she brought as a memory prompt. I gathered that Tobias's temper flare-ups at the two pubs had not been included in the version of events she knew.
11 There is a further reference to what appears to be the same '100 page' document at page 244 of the book in this exchange:
'Refresh yourself', Cass offered, nudging the document towards him.
He frowned and pushed the pages away …
12 With that background, I can now set out pars 8 through 18 of the plaintiff's affidavit verifying his list of discovered documents, raising the following privilege based objections against an inspection of the documents which I have now identified.
'100 Page' Document
8 In my list of documents, I refer to documents numbers 14 and 15. These documents (which I understand are described by the defendants as 'the 100 page document') are documents in respect of which I claim:
8.1 legal professional privilege;
8.2 additionally, privilege against self-incrimination.
9 Documents 14 and 15 were prepared by me with the assistance of my now wife whilst we were in South Africa in or about 2009/2010. We discussed the circumstances of the death of Simone Strobel and in particular, media reports and comments made by the Coroner in the Coroner's Court of New South Wales giving rise to assertions that I was involved in or responsible for the murder of Simone Strobel.
10 My wife and I resolved that I should take active steps to clear my name and for that purpose we should seek legal advice as to the most appropriate way of clearing my name.
11 In order to obtain that advice, we discussed that I should prepare (for the purpose of briefing an adviser) a document recording my instructions. We did not have access to documents at the time or other records and compiled a draft from memory. It was our intention to utilise this document to submit to my attorneys in the Federal Republic of Germany or in Australia (from where my wife originated).
12 Prior to our marriage, both my wife and I discussed with her parents, John and Sandy Moran, our joint desire to clear my name of the dreadful allegations that had been made against me. We asked for their advice as to how best to secure legal representation and proceed in this regard and for that purpose only they had access to the draft document I had prepared with my wife's assistance.
13 Otherwise than providing the documents to my solicitors, I have maintained strict confidentiality of the documents and not disclosed either draft to any other person.
14 Separately, I am concerned that no person has ever been charged with the murder of Simone Strobel and in light of the defamatory imputation conveyed by the defendant's publication and the content of the book, especially the second defendant's comments as to her role, I am concerned that I may be charged by police in New South Wales based upon a case relying on circumstantial evidence. In that regard, I desire to preserve my rights and I claim privilege against self-incrimination over the '100 page' documents.
Correspondence with German solicitors
15 I refer to my list of documents and in particular, the documents in item 85. These documents are documents comprising correspondence between myself and solicitors that I instructed to act for me in the Federal Republic of Germany and in particular, Mr Peter Auffermann. The respective documents comprise correspondence from me to that office seeking legal advice or correspondence from that office to me either confirming or containing legal advice. Separately, in so far as those documents comprise documents from me to my solicitors, I claim privilege against self-incrimination on the same basis as set out in paragraph 14 above.
- [I should note at this point that reference to document 85 above is, on my assessment, more than likely to be in error. Instead, it looks to be an intended reference to document 84, over which I note that at part 1B of the list there is a claim of legal professional privilege asserted. Document 85 is described in terms that would not, on the face of it, appear to attract legal professional privilege - with a reference just to a 'case file' provided to the plaintiff of the investigation by the German police into the death of Simone Strobel. However, document 84 is described as 'correspondence between T Moran and Dr Peter Auffermann (in German and English)' of various dates. Consequently, I will proceed upon the basis that the plaintiff's par 15 above ought be read as intending his reference to be to listed document 84. This ostensible typographical error in his affidavit may be corrected in due course.]
Notes and Annotated documents from John and Sandy Moran
16 I refer to my list of documents and in particular, the bundle of documents 16. These documents comprises notes and annotated documents given to me by father-in-law Mr John Moran and my mother-in-law, Mrs Sandy Moran for incorporation in detailed instructions that I wold provide to solicitors seeking advice on how I should clear my name and in particular respond to matters that arose in the Coronial Inquest in New South Wales.
17 I claim legal professional privilege in respect of these notes as they reflect issues that I had discussed with Mr John Moran in his capacity as a trusted adviser to me with whom I discussed matters in respect of which I would seek and did seek legal advice.
Old Laptop
18 I previously owned a laptop computer which was seized by the German Police in or about April or May 2005 but was subsequently returned to me July or August 2005. In or about 2010/2011, I purchased a new laptop as my old laptop was very slow and had a broken screen. I believe my old laptop is at my parents' house in Germany. I do not believe there are any documents on my old laptop which may be relevant to these proceedings.
14 Furthermore, it may be seen that whilst pars 14 and 15 deal with the issue of self-incrimination as regards that claim of privilege over any inspection of documents 14, 15 and 84, there is no such elaboration provided within Mr Moran's affidavit concerning his claim of privilege under listed item 121, as regards the notes from a Skype interview of 23 July 2014. But presumably, the assertion of a privilege against self-incrimination is advanced on the same basis. I draw that conclusion as a matter of inference and proceed accordingly.
The present issues
15 I am not asked at this time to evaluate any of the articulated claims of the plaintiff for privilege over identified documents which he has discovered as items 14 and 15, which together would appear to be compatible with the so-called 100 page document; at 16, for the notes prepared by the plaintiff's parents-in-law as regards annotated documents; at 84, as regards a claim of legal professional privilege in relation to correspondence between the plaintiff and his German legal adviser, Dr Auffermann; and document 121, being notes of the Skype interview.
16 Their present significance arises now for me only in terms of what is a clash that has emerged against the plaintiff's position in seeking an immediate referral of his action to a without prejudice mediation to be conducted before a registrar of this court. That mediation proposal now stands as strongly opposed by the contention of the defendants, which is that for the present there can be no mediation - until the defendants have had an opportunity to advance more of their as foreshadowed interlocutory applications against the plaintiff, pressing for orders allowing their unfettered inspection of documents against which privilege against inspection has currently been asserted by the plaintiff.
Respective arguments
17 More precisely, the defendants' proposed minute of orders of 15 November 2016 proposes a timetable for the defendants to file and serve an outline of submissions and affidavit material in support of the defendants' application seeking to compel the plaintiff to allow inspection of items 14, 15, 16 and 121 (no reference being made to document 84 at this point) from the plaintiff's list.
18 Essentially, a defendants' timetable is advocated, foreshadowing an exchange of written submissions and of affidavit material with the plaintiff, culminating in the allocation of an appointment in due course in 2017 for hearing verbal interlocutory arguments in relation to compelling inspection.
19 Whilst the position was not entirely clear, one aspect of the foreshadowed defendants' interlocutory application would, as a matter of inference, seem to involve (as regards the challenge against the foreshadowed claim of legal professional privilege) an argument that a judicial decision maker, in evaluating the challenge against the legal professional privilege claims of the plaintiff against inspection, ought themselves to view the documentation over which privilege is asserted. That submission appeared to be the assumption of counsel for the plaintiff, Mr Bennett, and I do not recall him being contradicted in terms of that assumed hypothesis by Ms Galati, counsel for the defendants. In present circumstances, the pragmatic consequence of what is proposed would call for the allocation of an independent judicial officer to that task. Someone other than myself as case manager and putative trial judge would need to hear that application and conduct such an inspection - to avoid potential trial judge conflicts arising, should the claim of privilege be upheld but the decision maker thus exposed to the document's privileged content thereby disqualifying themselves from being trial judge.
20 That aspect was essentially identified at present only in a context of pointing to potential delays associated with resolving a contested application challenging the plaintiff's privilege assertions against inspection in due course.
21 For his part, the plaintiff, through his legal representatives, filed a minute of proposed orders seeking an immediate referral of the action to a mediation conference to be conducted before a registrar of the court.
22 During oral submissions Mr Bennett amplified the basis for that request by his submissions, essentially to the effect that this course would be the more cost effective (particularly bearing in mind the high levels of costs incurred to date) and a foreshadowed amount of costs likely to be incurred (the estimate being in the region of $50,000 to $70,000) in pursuing a contested inspection application, as regards the documents over which an assertion of privilege by the plaintiff has been articulated and maintained.
23 Mr Bennett invoked, to support his position, considerations of proper proportionality arising under Rules of the Supreme Court 1971 (WA) O 1 r 4A in terms of the efficient disposition of a matter, balanced against the interests of justice. Of course, if the mediation is not successful, then the foreshadowed contested interlocutory inspection application challenging privilege would then need to proceed and be evaluated. In essence, however, Mr Bennett submits that a high level of possibly unnecessary interlocutory legal costs and potential waste stands an excellent chance of being avoided by proceeding immediately to a mediation and from there to a potential resolution completely of the whole action in that forum.
24 On the other hand, the defendants, through Ms Galati, strongly oppose a mediation at this point. They indicate that until they have completed their inspection of documents 14, 15, 16 and 121 on the plaintiff's list, they are essentially in no mood or position to mediate. They say that it is the plaintiff, by his stance in opposing their inspection and by pressing his claims to privilege, that is effectively holding things up and generating the need for them to bring their application to vindicate their position. Consequently, they say that any costs or delays associated with a looming further interlocutory disputation path are factors attributable to the strategic decisions of the plaintiff. They should not be laid at the defendants' doorstep, so it is said. I am told that the mindset of the defendants, having had the benefit of advice from senior counsel from New South Wales, is that it would be a complete waste of time for them to mediate presently until these inspection issues which present as 'elephants in the room' are resolved, one way or the other.
25 In reply, Mr Bennett articulated the potential lack of long term forensic worth at trial to the defendants in the documentary materials so resolutely sought to be inspected, even in the event the court should overrule the privilege claims and compel production for inspection. Likewise, there is the potential for unavoidable cost and delay associated with the hearing of inspection arguments and then a possible appeal over the result, particularly as regards a rather novel self-incrimination privilege argument as foreshadowed. The argument is unique as it would be articulated by the actual defamation plaintiff who is seeking damages against these defendants on the basis of a Chase level 1 defamatory imputation (of murderer), but whose position, at least at the last interlocutory hearing (see my prior reasons), is that a subsisting and non-waived privilege against self-incrimination extends to inhibiting him (ie, as plaintiff) being cross-examined at the civil trial of the action he has commenced.
26 It is the case, of course, that whilst the defendants do by their defences plead Lucas Box or Polly Peck defences of justification as regards a Chase level 2 imputation, they have not engaged directly against the plaintiff by way of a plea of justification to his Chase level 1 imputation that has been raised against them.
27 During the course of submissions, counsel for the defendants indicated that the materials sought to be inspected (if, say, hypothetically, the current privilege claims were ultimately overruled by a court) would likely have their main relevance in relation to the credibility of the plaintiff at a trial. But in relation to that arena of perceived forensic relevance, I observed that, possibly, this credibility relevance submission would carry more force if the defendants were defending under a Chase level 1 justification defence position. But, as currently framed, the lesser Chase level 2 justification defence of reasonable grounds to suspect the plaintiff (measured at the time of the publication of the book) does not really look to generate with it a significant element of weight, as regards the plaintiff's credibility or otherwise at a trial as a witness. In other words, either there were sound grounds for a reasonable suspicion of the plaintiff or there were not, at the time the book was published. Any factors pointing towards alleged grounds for reasonable suspicion are all objectively identified already under the defendants' defence pleading and they will either be established and accepted as a basis for the Lucas Box/Polly Peck plea or not. The plaintiff's credibility at trial or otherwise does not seem on the face of it to be a particularly pertinent consideration to identifying and assessing those reasonable suspicion factors at the time the book was published.
28 Mr Bennett in reply also foreshadowed that in the event that the claims for privilege against self-incrimination in respect of the identified documents were rejected that there could follow an application for a permanent stay at some point, with then even more capacity for an appeal and accompanying delays associated with such a series of events.
29 Bearing in mind the significance of the present strong in principle clash between the parties over proceeding now to a swift mediation, as against a further pursuit of more complex interlocutory issues challenging the claims of privilege against inspection in respect of the four documents, I reserved my decision to reflect upon these strongly conflicting, but respectably arguable, positions on both sides which had emerged in somewhat unusual circumstances.
Determination
30 In the end, but not without some hesitation, I am of the view that I should accept the advocated position of the plaintiff to refer the matter immediately to a mediation to be conducted before a registrar of this court at the earliest available opportunity convenient to all parties, including counsel, and necessary participants.
31 In brief summary, the factors which bear upon me to reach that position are the following.
(a) Essentially, the present decision is a matter of practice and procedure. It requires a bespoken assessment for the presenting facts and circumstances of this individual case. Here I have been case manager of this action from its 2014 inception in the urgent circumstances of the plaintiff's unsuccessful quest then for interlocutory injunctive relief as articulated in Moran v Schwartz Publishing Pty Ltd [2014] WASC 334. Since that time there have been a greater than usual number of contested interlocutory applications between the parties with measures of success from time to time on both sides. No doubt very considerable legal costs have been incurred in that process on both sides. However, during 2016 the pace of this action toward a trial has significantly slowed. This has been observable to me as case manager, since delivery of the last reserved reasons in June 2016. Consequently, it presents to me now that with pleadings closed and the parties' positions essentially very well understood, the opportunity for a successful mediation does present as being the prima facie more sensible and pragmatic course to take from a perspective of a viable end resolution of what has been a long running and expensive dispute.
(b) Against that, the stance articulated on the part of the defendants would ordinarily carry considerable force, as regards achieving access to information upon discovery, if they can establish a legal entitlement to see such documents, overcoming the present claims of privilege which are articulated.
(c) Having said that, my prima facie and necessarily high altitude level assessment of the plaintiff's claims to legal professional privilege as presently articulated leads me to a position where I would assess them as more than respectably arguable, in all the circumstances. As regards the plaintiff's parents-in-law, a basis for a common interest legal professional privilege in relation to the sharing of that information with them would seem apparent. In other words, this is not a scenario of what manifests to me as a flimsy or petty assertion of a privilege by a plaintiff, just being difficult. The issues which manifest on their face do articulate what I assess as a respectable position.
(d) In terms of a likely path towards the defendants challenging the plaintiff's claims for legal professional privilege, it does seem to me that there arises now a real potential for an injection of even further delays in an overall too slow to date progression of this action to a trial outcome, if that is required. Conducting the contested interlocutory application about inspection which the defendants wish to pursue also seems to raise potential levels of expenditures of more legal costs on both sides. Against that is a more potentially very desirable outcome of a quicker mediated resolution.
(e) As I indicated to counsel for the defendants during argument in relation to the potential forensic significance of such documents as might be successfully unearthed upon this interlocutory quest if embarked upon, it does seem to me that, given the clash of positions as between a Chase level 1 defamatory imputation raised by the plaintiffs and a Polly Peck/Lucas Box justification response, issues as to the plaintiff's overall credibility would not in this particular case present as a particularly significant matter, bearing in mind that the underlying incident concerning the death of Simone Strobel took place in 2005 at Lismore, NSW. The 2005 date needs to be measured against the forensic worth to the defendants of documents that were created looking back some years after 2005, say as regards documents 14 and 15 in 2009/2010, being annotated documents produced by the plaintiff's parents-in-law at unstated various dates, but necessarily much later than 2005. That also applies to the Skype notes of July 2014 of an interview between the plaintiff, his sister (Katrin) and his father-in-law (John). In short, therefore, I remain of the prima facie view, as I expressed to counsel for the defendants at the hearing, that the credibility (relevance) of the documents to be sought would not on their face present to me, at least, as necessarily delivering the 'pots of gold' or 'smoking guns' that the defendants may currently think they are pursuing. Of course, if a mediation is not successful, these questions can always be taken up again before a trial.
(f) I cannot, with respect, accept the submission of counsel for the defendants that reference to mediation now would be a 'complete waste of time'. Long experience of and exposure to the mediation process tells me otherwise. It is common for parties with ostensibly entrenched positions to be altered to move from those positions by an exposure to the conciliatory regime of mediation. Time and time again it is the experience of this court that ostensibly intractable disputes come to be well capable of an efficient resolution, where the relevant decision makers are gathered together in one place and prevailed upon by a skilful mediator to rationally approach and reassess their commercial disputation with a modicum of common sense, decency and goodwill.
32 Notwithstanding the current, and what I do not doubt are sincerely held, reservations of the defendants, as expressed to me through their counsel, I am of the view that 'peace' must be given a chance at this time. A mediation at this point does carry, on my assessment, a real potential to be productive, and to generate a resolution that would 'stop the clock' on an unnecessary incurring of further ongoing high level legal costs. That result would be in the parties' best interests, not to mention in the overall best interests of the wider community of Western Australia in terms of a preservation of scarce curial resources which are more than usually needed at present.
33 In all the circumstances then, I am persuaded to issue orders in terms of the plaintiff's proposed minute and directing the matter to a mediation at this point. The parties should now confer over the precise terms of those orders and, in due course, indicate their available dates to the associate to the Principal Registrar of this court.
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