Plaintiff v Defendant

Supreme Court of Victoria|2010-02-05|Before: KAYE J

PRACTICE AND PROCEDURE - Subpoenas to non-party for production of documents - Relevance of documents to proceedings - Supreme Court Rules O 42A.01.

For the Secretary of the Department of Parliamentary Services

2 The media release, which is the subject of the proceeding, contains references by the defendant to, and comments by the defendant on, the report of the Victorian Ombudsman dated May 2009 concerning the conduct of councillors at Brimbank City Council, and also the report of the Victorian Electoral Commission on the Kororoit District By-election held on 28 June 2008. The plaintiff alleges that in its ordinary and natural meaning the release bore three imputations relating to him, namely that:

(a) The plaintiff has knowingly and intentionally engaged in repeated and fraudulent breaches of Victoria's electoral law.

(b) The plaintiff, on several occasions, knowingly and intentionally assisted and encouraged Councillor Ken Capar to misuse his position for personal gain; and

(c) The plaintiff is not a fit and proper person to be the Victorian State Secretary of the Australian Labor Party because he is corrupt.

3 In response, in his defence, the defendant denies that the words contained in the media release bore the imputations alleged by the plaintiff. Instead, the defendant has pleaded that the media release conveys three different meanings, namely:

(a) That the Ombudsman had effectively found that the plaintiff had knowingly and intentionally engaged in repeated and flagrant breaches of Victoria's electoral law;

(b) That the Ombudsman had effectively found that the plaintiff had aided and abetted the re-election of a Brimbank City councillor by countenancing or directing the provision to him of confidential voter information in breach of the Electoral Act 2002 which councillor was subsequently assessed by the Ombudsman to have engaged in improper conduct;

(i) countenanced or directed the provision of confidential voter information to local councillors affiliated with the ALP in breach of the Electoral Act 2002; and

(ii) authorised the distribution of a misleading electoral pamphlet in the Kororoit By-election in June 2008;

he was not a fit and proper person to be the Victorian State Secretary of the ALP.

4 In his defence, the defendant relies on those alternative meanings pleaded by him as the basis of defences of substantial truth, contextual justification and honest opinion. In addition, the defendant has also pleaded defences of qualified privilege. In response, in his reply, the plaintiff has alleged that the defences of truth, founded on the defendant's alternative meanings, are bad at law; that if the release conveyed an opinion, that opinion was not based on proper material and was not honestly held by the defendant; and that the defence of qualified privilege is untenable because (inter alia) the conduct of the defendant was not reasonable in the circumstances and the defendant was actuated by malice.

5 The principal issue in respect of each subpoena is whether the documents which are sought to be produced are relevant to any of the issues defined in the pleadings. It was also submitted on behalf of the plaintiff, and on behalf of the parties to whom the subpoenas were directed, that the terms of each subpoena are too wide. In addition, it was submitted on behalf of Mr Brumby that the only document, to which his subpoena would respond, is a document described as "Possible Parliamentary Questions", which is a briefing document, prepared by departmental officers at the request of a minister, in relation to issues which are likely to be the subject of questions in Parliament. Ms Anderson, who appeared on behalf of Mr Brumby, foreshadowed that the subpoena thus raises issues of Parliamentary privilege, public interest immunity and/or legal professional privilege. The parties agreed, however, that I should first decide the issue of relevance, and, if necessary, put over questions as to the breadth of the subpoenas, and issues as to privilege.

6 The subpoenas were issued on behalf of the defendant pursuant to Order 42A.01 of the Rules of the Supreme Court. Subparagraph (1) of that rule specifically provides that the rule applies where a party seeks to require a person, not a party, to produce any document "for evidence" before the hearing of an interlocutory or other application in the proceeding, or before the trial of the proceeding. Thus, by its express terms the rule only authorises the issue of such a subpoena where the document, the subject of the subpoena, may potentially be admissible as evidence in the proceeding. Obviously, in order to be admissible, the document, of which production is sought, must have at least some potential relevance to the issues defined in the proceedings.[1]

7 The test of relevance to be applied in such a case as this was the subject of some debate between counsel. Dr M Collins, who appeared for the plaintiff, referred to the test stated by Waddell J in Spencer Motors Pty Ltd v LNC Industries Limited[2], namely, that inspection of a document sought by a subpoena should only be granted "... so far as is necessary in the proper conduct of the litigation and this means where it is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case". On the other hand, Mr S Wilson QC, who appeared with Mr T McEvoy for the defendant, submitted that the applicable test is that stated by Gibbs CJ in Alister v R[3], namely that the test for relevance of documents sought on a subpoena is whether it "appears to be 'on the cards' that the (documents in question) will materially assist the defence".

8 In practical terms, for the purposes of this application, there is probably little difference between the two tests. In Spencer Motors, Waddell J based the test, applied by him, on the decision of the New South Wales Court of Appeal in Waind v Hill[4]. That test has been followed on a number of occasions by other primary judges, including judges of this Court[5].

9 On the other hand, the formula adopted by Gibbs CJ in Alister was specifically stated by his Honour to be applicable in a criminal case, in which the courts adopt a more liberal approach to production of documents under subpoena, because the liberty of the subject is at stake. Nevertheless, as has been observed in the authorities, at the stage at which a subpoena is served, the court has, at best, only a general conception of the issues in the case, and of the nature of the evidence which is to be adduced in relation to them.[6] Thus, as noted by Byrne J in Yunghanns v Candoora No 19 Pty Ltd[7] the court is not "unduly astute" to reject the possibility that a document, which is the subject of a subpoena, does not meet the test of relevance.

10 For the purposes of the application of those principles, it is important to bear in mind the issues which have been defined by the pleadings. In particular, it is significant that the defendant has not sought to justify the three imputations pleaded by the plaintiff. Nor has the defendant sought to justify any of the findings made by the Ombudsman or the Electoral Commission. Rather, as I have stated, the defendant has pleaded that the release published by him accurately stated two findings by the Ombudsman, and one finding by the Electoral Commission. The third imputation, which the defendant seeks to justify, also pleads that by reason of the finding of the Electoral Commission, the plaintiff is not a fit and proper person to be the Victorian State Secretary of the ALP.

11 With those observations in mind I turn to each of the subpoenas.

Subpoena to the proper officer, Australian Labor Party

12 The subpoena to the Australian Labor Party seeks four categories of documents. Clause 1 seeks "all documents relating to the terms upon which Mr Stephen Newnham, the former Victorian State Secretary and Campaign Director of the ALP, was:

"1.1 Employed by the ALP in the capacity of Victorian State Secretary and Campaign Director;

1.2 Terminated, dismissed or otherwise removed from his employment as State Secretary and Campaign Director on or about 15 September 2009."

Clauses 1.3 to 1.5 specify some of the documents which are sought by clauses 1.1 and 1.2 of the subpoena.

13 Mr Wilson contended that the documents sought, under paragraph 1.1 of the subpoena, are relevant because they relate to the issue whether, as Victorian State Secretary and Campaign Director of the ALP, the plaintiff had authority to direct Mr Sanli in his work. On that basis, in my view, the documents sought by that part of the subpoena are not relevant to the issues in the case. The purpose which is sought to be served by that paragraph of the subpoena is to establish whether the plaintiff had the authority to direct Mr Sanli who, the Ombudsman found, had been responsible for unlawfully providing electoral material to a member of the Brimbank Council. Clearly, that purpose goes to the truth of the innuendos pleaded by the plaintiff. Indeed, that much is made clear by paragraph 29 of the written submissions filed on behalf of the defendant, that the documents "... may be relevant to the matters investigated by the Ombudsman and the Victorian Electoral Commissioner and the findings made by them ... ". In the absence of a plea of justification to the plaintiff's imputations, the documents are not relevant.

14 Recognising that problem, Mr Wilson, in his oral submissions, also argued that the documents may be relevant to the reason why the plaintiff was removed as State Secretary of the Australian Labor Party. For, he submitted, if the documents demonstrate that the plaintiff did have the authority to, and did, direct Mr Sanli in his activities, that may have been a reason why the plaintiff was ultimately removed from his office as Victorian State Secretary of the ALP.

15 In my view, that submission is flawed. The argument confuses the reason why the plaintiff's employment with the ALP was terminated (which may be relevant), with the "justification" of those reasons (which is not relevant). If it is relevant to establish the reason why the plaintiff ceased his employment with the ALP (which I shall discuss below), it is not relevant for the defendant to establish whether the ALP was "justified" in dismissing him. Indeed, should the defendant seek to establish that matter, the defendant would thus be seeking to justify the imputations pleaded by the plaintiff, which he has declined to do. At most, it may (arguably) be relevant for the defendant to establish why the plaintiff ceased his employment as Secretary and Campaign Director of the ALP in September 2009. It is not however, relevant to any matter in issue in the case to establish whether the basis upon which the plaintiff was so removed was sound or otherwise. For those reasons, I would disallow paragraphs 1.1 and 1.5 of the subpoena directed to the ALP.

16 Mr Wilson sought to support the relevance of the documents, described in paragraph 1.2 of the subpoena to the ALP, on two main bases. First, he submitted that those documents may be relevant to the plea of justification made by the defendant. In particular, he pointed to subparagraph (vi) of the particulars of justification under paragraph 6A of the defence, which states:

"Having regard to these matters the Premier of Victoria and Parliamentary Leader of the ALP, the Honourable John Brumby MLA, had consistently refused to express confidence in Newnham and on or about 15 September 2009 Newnham was replaced as State Secretary and Campaign Director of the ALP by the Premier's Chief Policy Advisor, Mr Nick Reece."

17 Pausing there, it is difficult to discern the relevance of particular (vi) to the plea of justification advanced in the defence. The fact (if it be so) that the plaintiff was replaced as State Secretary and Campaign Director in September 2009 has nothing to do with the first two imputations pleaded in the defence. The third imputation does allege that by reason of the findings of the Electoral Commissioner the plaintiff was not a fit and proper person to be the Victorian State Secretary of the ALP. However, it is difficult to see any logical reason why the removal (or resignation) of the plaintiff from that position in September 2009 would justify that imputation.

18 Nevertheless, it is not necessary for me to conclusively decide this matter. For I have come to the conclusion, at this preliminary stage, that the documents, sought in paragraph 1.2 of the subpoena, may have some relevance to the plaintiff's claim for damages. More accurately, I am not persuaded that the documents could not be relevant to that issue.

19 Mr Wilson sought to support the relevance of the documents, referred to in paragraph 1.2 of the subpoena, by reference to the particulars of aggravated damages under paragraph 8 of the statement of claim, in which it is alleged that the defendant published the release knowing and intending it would have grave consequences for the plaintiff's standing and reputation. In my view, that particular does not itself render relevant the documents sought in paragraph 1.2 of the subpoena. The claim for aggravated damages is directed to the defendant's state of mind, and not to the actual consequences of the publication for the plaintiff.

20 However, as discussed in the course of oral submissions, it seems to me that it is highly likely that, in one form or another, the issue as to the termination of the plaintiff's employment with the Australian Labor Party, and the reasons for that termination, will arise in the context of the plaintiff's claim for damages. Dr Collins pointed out that the plaintiff does not, and will not, claim that the termination of his employment with the ALP was in any way causally connected with the publication of the media release by the defendant of which he complains in these proceedings. Nevertheless, the plaintiff will be claiming damages for injury to his reputation in the particular sector which related to the subject matter of the publication, namely, his conduct and standing as the State Secretary of the Australian Labor Party. No doubt, his case will be that the publication caused grave injury to that aspect of his reputation. In those circumstances, it is inevitable that there will be evidence that, four months after the publication of the media release, he ceased to be State Secretary of the Australian Labor Party. In that context, it is but a short step for the issue, as to the reason for the cessation of his employment, to arise. While it is difficult at this stage to identify precisely the logical relevance of the reason for the termination of the plaintiff's employment with the ALP, nevertheless in the forensic realities of a witness trial before a jury, it is, in my view, at least reasonably possible, if not probable, that the question will arise in relation to the issue of damages. For those reasons, I could not, at this stage, rule that the issue is irrelevant. Ultimately, the precise relevance of the issue may remain to be debated when the issues in the case are clear at trial. However, applying the tests to which I have already referred, the issue is potentially sufficiently relevant to justify paragraph 1.2 of the subpoena.

21 Paragraph 1.4 of the subpoena provides that the documents, sought by paragraphs 1.1 (which I have disallowed) and 1.2 shall include:

"Communications between any agent, officer, employee or member of the ALP and the Honourable John Brumby MLA, the Premier of Victoria, in relation to the termination, dismissal or removal from office of Mr Newnham."

22 As I have already stated, the parties have deferred making submissions as to the breadth of various sections of the subpoenas. In accordance with the conclusions to which I have just arrived, the only communications, of the type sought by paragraph 1.4, which could conceivably be relevant, would be communications, before the termination of the plaintiff's employment, which relate to the reasons for the termination of the plaintiff's employment by either the plaintiff or the ALP.

23 Paragraph 2 of the subpoena to the ALP seeks all documents evidencing the distribution by any agent, officer, employee or member of the ALP of electoral information emanating from the Victorian Electoral Commission in the period, from May 2004 until November 2008, to any candidates in Victorian Local Government elections. I do not consider that the documents sought by that part of the subpoena are relevant, in the absence of a plea of justification by the defendant to the imputations pleaded by the plaintiff, or a plea as to the truth of the matters contained in the Ombudsman's report. Clearly, paragraph 2 is directed to proving (potentially) the involvement of the plaintiff in the unlawful dissemination of confidential electoral information in breach of the Electoral Act. Indeed, in paragraph 34 of the written submissions filed on behalf of the defendant, it is contended that the documents are relevant to the issue "... left open in the Ombudsman's report of whether the plaintiff was the person responsible for ordering the dissemination of confidential electoral information in breach of the Electoral Act and whether the ALP has evidence that the plaintiff was involved in conduct in contravention of the Electoral Act". On that basis, the documents referred to in this part of the subpoena are not relevant to the issues in the case, and I would disallow that part of the subpoena.

24 Paragraph 3 of the subpoena requires the production of all documents relating to the consideration by any agent, officer, employee or member of the ALP of advice given to the ALP by Holding Redlich dated 4 September in relation to the use by the ALP of information provided to members of the Victorian Parliament by the Victorian Electoral Commission. Again, I consider that those documents are irrelevant, in the absence of a plea of justification to the imputations pleaded by the plaintiff. Mr Wilson sought to support this part of the subpoena by arguing that it relates to the reason why the plaintiff's employment was terminated with the ALP. However, again, Mr Wilson's submissions to that effect merged the issue as to the reason why the plaintiff's employment with the ALP ceased, with the issue as to whether the basis for the cessation of that employment was justified.

25 The fourth paragraph of the subpoena requires the production of all documents relating to the receipt of and subsequent consideration of any part of the Ombudsman's report by the ALP. In my view, those documents (if they exist) would not be relevant to any of the issues defined by the pleadings. I disallow this part of the subpoena.

The subpoena to the Secretary, Department of Parliamentary Services

26 The subpoena to Mr S O'Kane, the Secretary of the Department of Parliamentary Services, seeks production of two categories of documents. First, it seeks production of documents evidencing the basis and terms of employment of Mr Sanli, and his duties and responsibilities. Mr Wilson submitted that those documents are relevant because they disclose whether the plaintiff had the authority to direct Mr Sanli in his work. For the reasons which I have already given above[8], that issue is not raised by the pleadings and is irrelevant.

27 The second paragraph of the subpoena requires the production of all documents evidencing the distribution by Mr Sanli of electoral information emanating from the Victorian Electoral Commission from May 2004 to November 2008 to any candidates in Victorian Local Government elections. Clearly, those documents could only be relevant to the truth of the innuendos pleaded by the plaintiff, and to the truth of the findings of the Victorian Electoral Commission and the Ombudsman. In the absence of a plea of justification in either respect, the documents are not relevant.

28 The subpoena to Mr Brumby requires production of the following documents:

"All documents and communications created in the period from 1 January 2009 until 1 October 2009 evidencing:

(a) any consideration by you or members of your staff; or

(b) communications by you or members of your staff to any agent, officer, employee or member of the ALP

relating to the conduct of Mr Stephen Newnham as Victorian State Secretary and Campaign Director of the Australian Labor Party having regard to or arising from the content of

(c) the Ombudsman's investigation into the alleged improper conduct of councillors at Brimbank City Council dated May 2009; or

(d) the report of the Victorian Electoral Commission into the Kororoit District By-election held on 28 June 2008 and dated January 2009; or

(e) evidence given to the Electoral Matters Committee of the Parliament of Victoria by Mr Newnham on 18 August 2009; or

(f) the Victorian Electoral Commission report entitled: 'Response to the Ombudsman's Report on alleged improper conduct of councillors at Brimbank City Council' dated August 2009."

29 On behalf of the defendant it was submitted that the documents sought by the subpoena are relevant because they relate to the issue as to why the plaintiff ceased his employment with the ALP in September 2009. In particular, it was submitted that Mr Brumby played a role in the termination of Mr Newnham's employment, and that therefore the documents are relevant in relation to the issue of damages.

30 There are two answers to that submission. First, the documents, which are sought by the terms of the subpoena, are not expressly directed to the question as to the termination of Mr Newnham's employment as the Victorian State Secretary and Campaign Director of the ALP. Rather, they are documents relating to the consideration given to, and communications about, the "conduct" of the plaintiff. The issue of any consideration given by the Premier or members of his staff, and communications by the Premier or members of his staff, relating to the plaintiff's conduct, are not relevant to the issues defined by the pleadings, including any issues of damages.

31 Further, if (which is not the case) the subpoena were confined to documents relating to the termination of Mr Newnham's employment as Victorian State Secretary and Campaign Director of the Australian Labor Party, those documents would not be relevant to any potential issue in the case. As I have already stated, it is possible that the reason why Mr Newnham ceased his employment with the ALP may be relevant to the question of damages. Thus, any reason given by the employer (the ALP) for the termination of his employment may potentially have (at least arguably) some relevance to the issues in the case. On the other hand, any documents held by the Premier relating to that matter could not, in my view, be said to have any potential relevance. The Premier was not the employer of Mr Newnham. It is not relevant whether (or not) he sought the removal of Mr Newnham from his position with the ALP. Rather, as I have stated, at most, what may be relevant is the reason why the relationship between the employer (the ALP) and the plaintiff came to an end.

32 For those reasons, I have reached the following conclusions:

(1) The documents sought by paragraph 1.1, 1.5, 2, 3 and 4 of the subpoena directed to the proper officer of the Australian Labor Party are not relevant to the issues in the proceeding.

(2) The documents sought by the subpoena to the Secretary, Department of Parliamentary Services are not relevant.

(3) The documents sought by the subpoena to the Premier are not relevant.

33 Accordingly I uphold the objections to paragraphs 1.1, 1.5, 2, 3 and 4 of the subpoena directed to the proper officer of the Australian Labor Party, and the objections to each of the subpoenas directed to the Secretary, Department of Parliamentary Services, and to the Premier.

34 Accordingly, I shall make orders on the summons filed on behalf of the plaintiff setting aside paragraphs 1.1, 1.5, 2, 3 and 4 of the subpoena issued to the proper officer of the Australian Labor Party, and each of the subpoenas issued to the Premier and to Mr O'Kane.

35 The conclusions which I have reached make it unnecessary for the parties to make submissions to me in relation to the breadth of the subpoenas directed to Mr O'Kane and to the Premier, and also in relation to the issues concerning privilege arising out of the subpoena directed to the Premier. It would seem, from the written submissions, however that there may be outstanding issues relating to the breadth of paragraphs 1.2, 1.3 and 1.4 of the subpoena directed to the proper officer of the Australian Labor Party.

[1] Kennedy Taylor (Vic) Pty Ltd v Grocon Pty Ltd [1999] VSC 242, [71] and following (Gillard J).

[4] [1978] 1 NSWLR 372, especially at 385 (Moffitt P).

[5] Liberty Financial Pty Ltd v Scott [2004] VSC 382, [32] (Smith J); Yunghanns v Candoora No 19 Pty Ltd (No 5) [2000] VSC 505, [13] (Byrne J); R v Nicholl (ex parte Lehmann) (1989) 95 FLR 330, 336 (Gallop J).

At a glance

Court

Decision date

Before

Source

Judgment (65 paragraphs)

Parties

Cases Cited (2)