From: Palinurus Newsgroups: alt.religion.scientology Subject: Mary Johnston v Church Of Scientology Mission of Dublin Limited and Others Date: 20 Feb 2004 10:38:29 -0500 Message-ID: Mary Johnston v Church Of Scientology Mission of Dublin Limited and Others The High Court Transcript 30 April 1999 PANEL: Geoghegan J JUDGMENTS: Geoghegan J This is a motion for further and better discovery brought by the Plaintiff against the Defendants. The Notice of Motion seeks:-1. An Order directing the Defendants to make available for inspection the originals of all the documents discovered and disclosed by the Defendants in their Affidavit of Discovery. 2. An Order directing the Defendants to make further and better discovery of certain documentation referred to in paragraphs 9 and 10 in the Affidavit of Dympna Murphy. Solicitor for the Plaintiff.3. An Order directing the Defendants to disclose to the Plaintiff those documents in respect of which the Defendants have maintained a claim of sacerdotal privilege.4. An Order directing the Defendants to list each and every document in respect of which a claim for legal professional privilege is maintained.For all practical purposes the important issue raised at the hearing of this motion was the question of sacerdotal privilege in relation to what are described in the Affidavit of Discovery as "counselling notes". These counselling notes arise in the main from a so-called "spiritual practice" of scientology known as "auditing", though partly also, I think from another "spiritual practice" known as "training". The Fourth named Defendant. Gerard Ryan. in his Affidavit of 27th January, 1999 says that auditing and to a large extent training are conducted on a one to one basis and he draws a comparison between the relationship that would exist in other religions between minister and parishioner with what he describes as "the one to one confidential communication between the parishioner and his or her auditor" in scientology. More particularly, a claim is being made that for an auditor for instance to disclose any of the communications he had with the other person even if that person is waiving any privilege in relation to them would be so fundamentally contrary to the beliefs and tenets of the Church of Scientology as to render him liable to eternal damnation analogous to the claims made by the Roman Catholic Church in relation to priests breaking the seal of confession.As I understand it. the Defendants in resisting disclosure of the counselling notes are making two other alternative arguments. They are saying that such confidentiality attaches to them that the Court must weigh up the public interest in the preservation of such confidentiality against the normal public interest in the disclosure of all relevant evidence and must in all the circumstances come down in favour of preservation of the confidentiality and as a second alternative the Defendants are arguing that the Plaintiff is bound by written contract to preserve the confidentiality. These last two alternative arguments to some extent overlap. There are also other issues in this motion of less importance and which I will deal with in due course.I start with sacerdotal privilege. I believe that there are only two decided Irish cases which can give me any worthwhile guidance in this connection. They are Cook -v- Carroll 1945 IR 515 and ER -v- JR. 1981 ILRM 125. A great deal of what Gavan Duffy J had to say in Cook -v- Carroll is obiter dicta. The head-note gives an accurate summary of what the learned Judge actually decided. He held that communications made in confidence to a parish priest, in a private consultation between him and certain of his parishioners, were privileged and that such privilege could not be waived by a party thereto without the consent of the priest. In ER -v- JR, Carroll J held that communications made to a minister of religion who was acting as a marriage counsellor are privileged in that the four conditions set out by Gavan Duffy J in Cook -v- Carroll were present. She followed, however. the English case of Pais -v- Pais, 1970 3 DPP 830 in holding that the privilege was that of the spouses and not of the minister for religion and might be waived by mutual consent of the spouses. This decision was in one sense an extension of the principle laid down by Gavan Duffy J in that it went beyond the relationship of parish priest and parishioner but on the other hand it seems to repudiate the idea that the priest counsellor himself could have a privilege which he would have to waive.I think that the waters were muddied to some extent in Cook -v- Carroll with all respect to Gavan Duffy J by the references to the confessor penitent relationship in the sacrament of confession and by references also to the then existing article in the Constitution referring to the special position of the Roman Catholic Church. Gavan Duffy J appears to have been of the view that there were constitutional and legal effects arising out of the so-called special position of the Roman Catholic Church. However, in other decided cases the view was expressed that it had no such legal effect and that it was really nothing more than a statement of fact. It being a fact, then as a matter of common sense and justice. it was reasonable for the Courts to revive what Gavan Duffy J says was the pre- reformation common law protecting the seal of the confessional even against waiver by the penitent. However, that is merely an opinion I express because I do not think it arises in this case. I do not accept that the Defendants can rely on an alleged analogy with the seal of confession. Neither in the Affidavits nor in Court and even though I requested it. was any evidence produced by way of theology manuals etc. that it was part of the doctrines of the Church of Scientology that any disclosure of what transpired in auditing or training sessions led to some kind of eternal punishment. Furthermore, the whole question as to whether the Church of Scientology is a religion or not remains controversial throughout the world and it is not sensible to suggest that it can be determined by sundry decisions relating to tax. I think that the absolute unwaivable privilege which probably does attach in Irish common law to the priest penitent relationship in the confessional is sui iuris and is not capable of development in the manner suggested.I do accept as Carroll J accepted that there can be situations where a privilege may arise in relation to counselling by a priest or minister but any such privilege may always be waived by the person being counselled and to that extent I am not prepared to follow the views expressed by Gavan Duffy J in relation to counselling by a parish priest of a parishioner. Indeed it is difficult to see why a relationship between a parish priest and parishioner is any different than a relationship between a priest or clergyman of any kind and a person coming from anywhere being counselled by him. Furthermore, although Carroll J left the question open. I would be inclined to think that in modern times when all kinds of secular counselling is available, and in particular marriage counselling, there may well be a privilege which the Courts would uphold in some circumstances but it would always be capable of waiver unilaterally by the persons being counselled.In this case the Plaintiff waives any privilege alleged to exist and in these circumstances and for the reasons I have given I cannot uphold the plea of sacerdotal privilege.I now turn to the argument based on contract. The Plaintiff undoubtedly signed a document dated 11th September. 1993 and headed:- "Church of Scientology Mission of Dublin (hereinafter referred to as 'The Church') Religious Services Enrolment Application/Agreement and General Release" Paragraph 7 of that document reads as follows:- "In connection with the service, the church may compile a folder containing its notations of my spiritual progress. known as a 'Pre-clear Folder' (PC Folder), as well as other ecclesiastical files containing notations regarding my spiritual progress. The contents of the folders are kept confidential from persons who lack the ecclesiastical authority to gain access to such documents, including the person who the files concern, and are subject to the priest-penitent privilege. I understand that as a condition of being accepted for participation in the Service. I am giving up any and all rights of ownership possession and control, copying and viewing of the PC Folder and other files concerning myself, both with respect to the files themselves and the information contained therein." I am satisfied that a private contract inter partes cannot oust the jurisdiction of the Court to order discovery of the document in which the contract is contained. "Power to compel the attendance of witnesses and the production of evidence is an inherent part of the judicial power of Government of the State and is the ultimate safeguard of justice in the State." (See Murphy -v- Corporation of Dublin 1972 I R 2l5 at 233). This passage is quoted and relied upon by Finlay CJ in his Supreme Court judgment in Smurfit Paribas Bank Limited -v- AAB Export Finance Limited, 1990 1 IR 469 at 475. I would at any rate interpret the contractual obligation as an obligation not to make a voluntary disclosure. It does not cover an obligation not to make a compulsory disclosure. Even if there are cases where a Court might refuse to make an Order for discovery because of particular and special contractual terms between the parties (which I do not necessarily accept) I do not believe that this would ever be done in a case where effectively the contract is being repudiated in the action itself. There are a number of causes of action in the Statement of Claim but fundamentally the Plaintiff is claiming that she was "brainwashed" in circumstances where she was not a genuine free agent. This allegation of course may prove entirely false but that is beside the point. I can only look at the Statement of Claim as it stands. For all these reasons therefore I am satisfied that the contractual term relied on cannot prevent an Order for discovery being made in relation to the documents referred to in that contract term.Finally, I reject also the argument that there is a greater public interest in upholding the confidentiality than the public interest in relevant evidence being produced in Court for the purposes of the administration of justice. If the Plaintiffs allegations are correct then she was improperly and illegally placed in situations where moral or legal obligations of confidentiality arose or where there was an apparent relationship of confidentiality. In an action of this kind disclosure is in my view in the greater public interest. All the documents therefore which have been disclosed as relevant but the production of which is being withheld on alleged grounds of privilege or confidentiality must be disclosed and produced on request.Of course there is another argument for non-disclosure being made. It is suggested that in the case of some of the documents which would be material, they are no longer in the possession or procurement of the Defendants in that they have been sent to branches of the Church of Scientology in the U.K. I do not find it credible that these documents are not procurable and I think it likely that this is being used as a method of defeating discovery in the Irish Courts. It was the Mission of Dublin in the Church of Scientology which the Plaintiff joined and any documents prepared in connection with her membership would seem to be to be clearly in the possession and ownership of one or more of the Defendants. The argument has been made on behalf of the Defendants that even if it were true that on request to England, documents would be returned, this does not mean that they are within the procurement of the Defendants within the meaning of the Rules of the Superior Courts. I accept that proposition in circumstances where the requesting party and the retaining party have no institutional link with each other and are fully at arms length with each other. In such a case the test is whether the documents could be recovered by action and not whether as a matter of probability they would be voluntarily handed over on a request. But I do not accept that that is the position where two branches of the same institution are involved. There would seem to be strong prima facie evidence here that any documents relating to the Plaintiff and in the possession of an English branch of the Church of Scientology are being held b the English branch as agents for the Defendants or one or other of them. I will therefore direct that the documents which come within this category must be procured by the First named Defendant and included in a Supplemental Affidavit of Discovery if not already discovered and must be produced for inspection to the Plaintiff if requested and the Plaintiff must be given copies thereof.Some of the other discovery sought by the Plaintiff seems to me to be excessive. However. I am prepared to make an Order in the terms of paragraph 2 of the Notice of Motion, that is to say. an Order directing the Defendants to make further and better discovery of the documentation described in paragraphs 9 and 10 in the Affidavit of Dympna Murphy but limited to such of the documents as are mentioned in those paragraphs as refer to the Plaintiff and which are not fully and adequately discovered already. Otherwise I will make all the Orders as set out in the Notice of Motion of 3rd July, 1998.With reference to the documents now in England. it is worth noting what the Fourth named Defendant swore in his Affidavit of Discovery of 30th July, 1997 in paragraph 3. He said the following:- "The counselling notes were last in my possession, power or procurement in 1995. At that time the documents were transmitted by me to the Church of Scientology at East Grinstead. Sussex in the United Kingdom. I am now making arrangements for this documentation to be returned to the Dublin Mission. This clearly re-enforces my view that those documents are within the procurement of the Defendants. DISPOSITION: Judgment accordingly