MORAN -v- SCHWARTZ PUBLISHING PTY LTD [No 7] [2016] WASC 422

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 422
Case No:	CIV:1894/2014	Heard:	17 NOVEMBER 2016
Coram:	KENNETH MARTIN J	Delivered:	23/12/16
No of pages:	14	Judgment Part:	1 of 1
Result:	Mediation referral
Category:	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

CITATION : MORAN -v- SCHWARTZ PUBLISHING PTY LTD [No 7] [2016] WASC 422 CORAM : KENNETH MARTIN J HEARD : 17 NOVEMBER 2016 DELIVERED : 23 DECEMBER 2016 FILE NO/S : CIV 1894 of 2014 BETWEEN : TOBIAS FRIEDRICH MORAN

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:

14	Document prepared by T Moran and S Moran	2009/2010
15	Document prepared by T Moran and S Moran	2009/2010
16	Notes and annotated documents produced by John and Sandy Moran	Various

4 Appearing under the heading 'German Solicitors':

Correspondence between T Moran and Dr Peter Aufferman (in German and English).

Various

5 Appearing under a heading 'Miscellaneous Documents':

121	Copy document entitled '23.7.13 Notes from Skype Interview with Katie, Tobias and John Moran RE: Tobias/Katrin's recollection of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] WASC 422
Decision Date: 23 DECEMBER 2016

CaseChat Overview and Summary

The case of Moran v Schwartz Publishing Pty Ltd [No 7] involved the plaintiff, Mr Moran, and the defendant, Schwartz Publishing Pty Ltd. The dispute revolved around the discovery of certain documents that were subject to claims of privilege by the defendant. The plaintiff sought to have these documents produced, while the defendant resisted, asserting that the documents were privileged and should not be disclosed. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the documents in question were subject to privilege and, if so, to what extent the privilege could be claimed. The court had to determine the nature and scope of the privilege asserted by the defendant and whether the plaintiff was entitled to inspect and copy the documents. The court also needed to decide on the plaintiff's application for mediation, which was opposed by the defendant.

In its decision, the court considered the arguments presented by both parties regarding the privilege claims. The court found that certain documents were indeed subject to privilege, but that the extent of the privilege was limited. The court acknowledged the importance of protecting legal advice and communications but also recognised the plaintiff's right to access relevant documents for the purposes of the litigation. The court ultimately decided that mediation would be an appropriate method to resolve the issues surrounding the privilege claims and ordered that the matter be referred to mediation.

Orders

Orders of the court

Mediation referral

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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